Fields of Peril

End Legal Double-Standard That Fails to Protect Children Working in Agriculture

Maria M.

“Every teenager should do at least a day and see how
it is to work a real job. You sweat. You walk until your feet hurt, you have
blisters, and until you have cuts all over your hands,” said Maria M.,
reflecting on her childhood working in the fields.[1]

Growing up in a farmworker family in rural Idaho, Maria said
she was “always surrounded” by work in the fields. She started
working at age 11 in order to help her parents. “I worked picking onions
after school in about 6th grade,” she told Human Rights Watch.
“I didn’t mind working in the fields. I just saw it as something we
did, something my family had always done.”

According to Maria, her young age was nothing unusual:
“I worked with a lot of older people and younger. The ages were always
varied, 11 and 12 year olds, even 10 year olds. They didn’t get paid on
check [on the books], they’d just go and help their parents on the side.
The growers know that. They see that—they would pass by when they drop
off water. No one was going to say anything.”

Maria said she worked 10 and sometimes 13 hours a day,
earning less than the minimum wage. “The pay was terrible.”

As she got older, Maria said, she mostly “was hoeing
onions in the back country . . . sugar beets, zucchini, espiga [detasseling
corn]. . . . When I worked in espiga, the growers would water . . . . We would
walk down the rows getting really wet. The mud goes in your tennis shoes and
you get blisters. You’re in them all day.”

Maria said everyone felt pressure to work fast. “The
crew leader would egg the workers on and intimidate the workers who were slow.
It almost became a tradition in the field, the person who was the fastest was
the best worker. . . . [It’s] something that has been instilled in us to
work hard. Prove yourself, be a good worker.”

One summer vacation in high school she harvested zucchini,
bending down all day to pick the vegetables. “You had to go really
fast,” she explained. “You had to bend down for hours until your
next break. . . . A lot of people who did zucchini before have back problems. I
was young and I know how much my back hurt after one season. . . . I
don’t know if I blame the field, but ever since I worked in zucchini, I
have had a lot of back problems. I don’t know if it was zucchini or if it
was just working for years in the field.”

Maria was the only member of her family picking zucchini and
one of only three girls in the field. “The first time we got
there,” she said, “the guys were just joking around and said this
was a guy’s job, it was no place for girls, that we should just go
home.” She added, “it wasn’t an easy job. . . . Sometimes it
was very frustrating because guys would tell you stuff.” Because Maria’s
father was known in the community, she said, she was spared more serious
harassment, but the men were verbally abusive to one of her co-workers.

At the time, Maria said, she did not know anything about
pesticides but has since learned. “Now that I know about pesticides,”
she told us, “I’m pretty sure we entered many fields” with
recently applied pesticides.

There was always white residue in the fields, especially
zucchini always had residue on them. . . . [T]here were people who got sick but
probably thought it was the heat. They never told us they were spraying, they
would just say “watering.”

One summer . . . me and my older sister were working . . .
. We were told when we saw the plane we had to get out. But they didn’t
say when, just “look for the plane.” They were spraying things we
didn’t know what they were. We heard it was chemicals so [the plants]
could grow, but we didn’t know what they were. So we didn’t think
about that when we saw a plane. We were in the next field and you see it all the
time in the country. It’s always the next field but it drifts.

Maria is one of the rare farmworker children who has made it
to college, where she says her experiences in the field continue to motivate
her. “I’m not like some people who came to college because their
parents made them or to party,” she explained. “With me, my parents
didn’t force me to come to school. They didn’t want me to put
pressure on myself. In the long run when I finish school, I will help my
parents. When there is an exam coming or I just want to go home because my
parents need help financially, I think how much I’m going to help them
when I get out. Some days I just want to go home and help them, but I think in
the long run this won’t help, so I think working in the fields had a big
impact on me.”

Marcos S.

“I really didn’t have a childhood and I
don’t want [my own children] to go through what I did,” 17-year-old
Marcos S. told Human Rights Watch. “You’re a kid only once. Once
you get old you have to work.”[2]

Marcos, who lives in North Carolina, said he started working
in agriculture full time when he was 12 years old. Among other things, from
late November to late December, he cuts Christmas trees. Marcos explained what
his work was like when he was 12 years old. He said:

I did two things. One, I used a machine. It didn’t
cut the trees but it dug them out with the roots so we could take them
somewhere else. These were heavy because of the trees and the soil. I had to
hold the tree when they were digging. Then you carry it on your shoulder to the
truck. It was so heavy you couldn’t carry it by yourself so you had to do
it in pairs.

Second, I cut the tree three to four inches from the
ground. I put it in the machine to tie it. I put it on my shoulder and carried
it to the trucks. . . .

When I was 12, the first day it was so heavy. The next day
I didn’t even want to get up because my body hurt so bad but I knew I had
to because I needed the money. I said “never again” but I had to
because that was the only job.

Marcos told us that the first year he “used a chainsaw
a couple of times but that was it. If someone was doing something else,
they’d say, ‘Cut there.’” But when he returned to the
same farm the next year at age 13, he used a chainsaw like everyone else. When
asked if he was taught how to use it, he replied: “You just have to start
it, that was the most important thing.” Marcos admitted that he
didn’t always feel safe. “My uncle cut his leg using a chainsaw.
Sometimes if you don’t do it right, it can bounce back—it can
happen in a flash. My uncle, it was bad.”

While working, he said, he wore “just regular clothes,
no gloves, masks, no protection. Regular shoes. . . . I never had any
protective gear. . . . And it’s cold, it rains. We still have to
work.”

Marcos said that pesticides were sprayed around him.
“They spray to kill the insects that damage the trees. They do that for
the trees that are still growing. . . . You don’t cut all the trees,
they’re mixed in. They’re marked with a red ribbon, the ones they
want you to cut. So the ones they don’t, they spray. You’re right
there. . . . A big tank on their back and they go around. They did it when I
was working. It smells so bad.”

He had never received any training on pesticides, he said.
“They don’t say anything. They just want you to get it done. The guys
that spray, they don’t even wear masks.”

Marcos said no one ever asked him how old he was, “You
just come if you can work.” Still, he assumed his employers knew his age:
“You can tell when someone is a kid, I mean, 12.” And, he noted,
“There’s a lot of young kids working out there. . . . Last year
[when I was 16] there were kids younger than me. When I was 13 . . . there were
other kids. My cousin is the same age as me. He worked Christmas trees for
other people.”

Marcos said he normally works weekends and school vacations,
on different crops throughout the year. But the Christmas tree harvest is
during the school year, and “sometimes they say, ‘We need you to
come Monday.’ So I say, ‘I have school,’ but they’re
going to pay me. . . . You pretty much have to choose work or school.
They’re not part-time jobs. . . . So sometimes I have to choose work. . .
. But in school there’s a limited number of times you can be absent. . .
. Then I have homework to catch up on. I go to work, I come home. I stay up
late to get it done.”

Marcos said that no one in his family had made it past the
tenth grade, and his two older sisters had already dropped out to work.
“My mom tells me, ‘You might want to get out of school and help
me.’ I listen to her and respect her but I want to choose my future. I
want to go as far as I can go.”

I. Summary and Key
Recommendations

Hundreds of thousands of children under age 18
are working in agriculture in the United States. But under a double standard in
US federal law, children can toil in the fields at far younger ages, for far
longer hours, and under far more hazardous conditions than all other working
children. For too many of these children, farmwork means an early end to
childhood, long hours at exploitative wages, and risk to their health and
sometimes their lives. Although their families’ financial need helps push
children into the fields—poverty among farmworkers is more than
double that of all wage and salary employees—the long hours
and demands of farmwork result in high drop-out rates from school. Without a
diploma, child workers are left with few options besides a lifetime of farmwork
and the poverty that accompanies it.

In 2000, Human Rights Watch published the
report “Fingers to the Bone: United States Failure to Protect Child
Farmworkers.” This study documented the exploitative, dangerous
conditions under which children worked in agriculture and the damage inflicted
upon their health and education. Highlighting weak protections in US law, it found that even these provisions were rarely enforced. Nearly 10 years
later, Human Rights Watch returned to the fields to assess
conditions for working children. We conducted research in the states of Florida, Michigan, North Carolina and Texas, interviewing dozens of child farmworkers who
had altogether worked in 14 states across the country. Shockingly, we found
that conditions for child farmworkers in the United States remain virtually as
they were a decade ago. This report details those conditions and the failure of
the US government to take effective steps needed to remedy them.Most notably, the government has failed to address the unequal
treatment of working children in the Fair Labor Standards Act (FLSA), which
provides fewer protections to children working in agriculture
compared with all other working children.

In agriculture, children typically
start working adult hours during the summers, weekends, or after school at age 11
or 12. Many children work part time much earlier, and Human Rights Watch
interviewed child farmworkers as young as seven. Seventeen-year-old Jose M.,
who described the shock he felt going to work at age 11, said that when he
looks around the field and sees 12-year-olds, “I know how they feel. I
used to feel like that. They have a face that says they don’t want to be
here.” He added, “Teachers at school know when kids turn 12. They
see the cuts on their hands. They know a child at 12 goes to work. No if’s,
and’s, or but’s.”

Parents told us they took their children to
work because they did not have childcare and because they needed the money to
meet basic expenses and buy school supplies. The fact that the work is legal
also presents it as a legitimate choice for parents, children, and employers.
But several mothers later expressed regret over the choices they had made. One
mother in Texas said she believed she had already stolen her 11-year-old
daughter’s childhood. Another said when she saw what work did to her two
oldest children, she decided not to take her two youngest children to work.

Current US law provides no minimum age for children working
on small farms so long as they have their parent’s permission. Children
ages 12 and up may work for hire on any farm with their parent’s consent,
or if they work with their parents on the same farm. Once children reach age 14,
they can work on any farm even without their parents’ permission. Outside
of agriculture, children must be at least 16 years old to work, with a few
exceptions: 14- and 15-year-olds can work in specified jobs such as cashiers,
grocery baggers, and car washers, subject to very restricted conditions.

Children often work 10 or more hours a day: at the peak of
the harvest they may work daylight to dusk, with few breaks. Children described
working five to seven days a week, weather permitting. For example, 14-year-old
Olivia A. said she worked from 6 a.m. to 6 or 7 p.m. picking blueberries in Michigan, seven days a week. Felix D., age 15, said he worked the same hours deflowering
tobacco in North Carolina, six days a week.

For school children, work is often confined to weekends and
summers, and before and after school. Children who have dropped out of school,
including “unaccompanied children” who have come without their
families from Mexico and Central America, work these hours whenever work is
available. Under US law, there are no limits on the hours children can work in
agriculture outside of school hours. In non-agricultural settings, 14- and
15-year-olds cannot work more than three hours on a school day and eight hours
on a non-school day.

Children working in agriculture typically make less than the
minimum wage. Their pay is often further cut because employers underreport
hours, and they are forced to spend their own money on tools, gloves, and
drinking water that their employers should provide by law. For example, in the Texas panhandle region, children told us they made $45 to $50 a day for 10 or more hours of
hoeing cotton, or at best $4.50 to $5.00 an hour, compared with the federal
hourly minimum wage of $7.25. Where the pay is based on a piece rate, meaning
workers are paid by the quantity they pick, it is usually much worse. Antonio
M., age 12, said that picking blueberries on piece rate in North Carolina, he
made at most $3.60 an hour.

With some notable exceptions, farmworkers are legally
entitled to minimum wage but not overtime, and rarely receive job-related
benefits that much of the rest of America’s workforce takes for granted.
They receive no paid sick days, no health insurance, no paid vacation leave,
and have no job security. They only get paid for the hours they work. Laws that
deny farmworkers overtime, and in some instances minimum wage, combined with
poor enforcement of existing wage laws, contribute to farmworkers’
poverty and financial desperation that compel children to work and make farmworkers
even more vulnerable to exploitation.

Farmworker youth drop out from school at four times the
national drop-out rate, according to government estimates. Human Rights Watch
interviewed many children who had been forced to repeat a grade one or more
times and who had never had anyone in their families graduate from high school.
Several factors explain this. Around 40 percent of hired crop workers migrate
each year to or within the United States for work. Children whose families
migrate within the United States often leave school early—in April or
May—and return weeks or even months after school has already started.
Fifteen-year-old Ana Z. in Texas said: “I don’t remember the last
time I got to school registered on time. . . . I’m afraid it’s
going to hold me back on my education. . . . I got out of math because I was a
disaster. I would tell the teacher, ‘I don’t even know how to
divide and I’m going to be a sophomore.’ I’m going from place
to place. It scrambles things in my head and I can’t keep up.”

Children who try to combine working and going
to school often find that school pays the price, in part because there are no
limits on how many hours children can work in agriculture outside of school
hours. Jaime D., who told us he dropped out of school at age 16 after he
started picking tomatoes, explained, “I wanted to work and still go to
school, but I couldn’t concentrate on both. I didn’t know how to do
both.”

Agriculture is the most dangerous industry for young workers,
according to the Centers for Disease Control’s National Institute for
Occupational Safety and Health (NIOSH). Working with sharp tools and heavy
machinery, exposed to chemicals, climbing up tall ladders, lugging heavy
buckets and sacks, children get hurt and sometimes they die. From 2005 to 2008,
at least 43 children under age 18 died from work-related injuries in crop
production—27 percent of all children who were fatally injured at work.
The risk of fatal injuries for agricultural workers ages 15 to 17 is more than
4 times that of other young workers.

Under current US law, children can do agricultural work that
the US Department of Labor deems “particularly hazardous” for
children at age 16 (and at any age on farms owned or operated by their
parents). In non-agricultural sectors, no one under age 18 can do such jobs.
Incongruously, some of the same jobs that are considered too dangerous for
teenagers in non-agricultural settings are perfectly legal in agriculture: a
16-year-old who is barred from driving a forklift in a store warehouse, for
example, may do so without restriction on a farm.

Children routinely described small injuries, and some more
serious in interviews with Human Rights Watch. Rarely did they say they sought
medical care.Jose M. said he was 12 when “they gave me my first
knife. Week after week I was cutting myself. Every week I had a new scar. My
hands have a lot of stories. There are scars all over.” Another boy described
being hurt when the truck carrying him out to the field rear-ended another.
Nevertheless, he said, he and his family returned to work the next day: working
sick, injured, and without taking breaks was a common theme among our
interviewees who needed the money and were afraid of getting fired if they
missed a day.

Human Rights Watch saw children working without gloves and
even barefoot. Most said no one required them to wear protective gear; if
anyone, it was their parents who urged them to wear it, not their employers.

Children often work performing the same motions—kneeling,
stooping, or raising their arms for hours a day. Youth described pain in their
backs, knees, hands, and feet, even at very young ages. Children whose bodies
are still developing are especially vulnerable to repetitive-motion injury.

Children work in extreme temperatures, heat and cold, from
over 110 degrees in the Texas summer to snow in Michigan. In some climates the
day starts cold and wet, then turns unbearably hot. Elias N., age 16, said the
bad days for him were the “real hot ones, the field is full of weeds, you
can’t even take a step. When you’re surrounded by corn,
there’s no air.” Working long hours in high temperatures places
children at risk of heat stroke and dehydration, particularly if there is not
enough drinking water. Heat illnesses can lead to brain damage and death, and
children are significantly more susceptible to heat stress than adults. A
17-year-old girl in California died in May 2008 after working nine hours
pruning grape vines. Her supervisor delayed her seeking medical care, and when
she finally reached the hospital she had a core body temperature of 108
degrees.

Many children said that their employers did not provide
drinking water, handwashing facilities, or toilets. Children described bringing
their own water and sometimes running out. In some places workers said they had
to buy water with their meager wages because the quality of the water in
migrant housing was too poor to drink.The federal Occupational Safety
and Health Administration (OSHA) requires agricultural employers to provide
drinking water, water for hand washing, and toilet facilities. Congress,
however, exempts farms with fewer than 11 employees from these regulations,
essentially exempting them from having to protect their workers' dignity and
most basic health requirements.

Children are exposed to pesticides. Some children told Human
Rights Watch they were sprayed directly; many more said that the fields next to
them were sprayed while they were working, and they smelled and had reactions
to the drift. “Here there are a lot of chemicals in the field,” said
18-year-old Hector H., who worked alongside children. “You can smell
them. [Recently] the plane sprayed, sprayed the cotton. . . . I felt dizzy. I
covered my face and kept working. No one told us to get out of the
field.”Many children described seeing residue on the plants or
even going back into fields wet with spray. Almost none of the children we
spoke with had received training on pesticide safety.

Exposure to pesticides is a hazard for all farmworkers but
may be especially dangerous for children whose bodies are still developing. Children
are uniquely vulnerable to chemicals and may absorb pesticides more easily than
adults. Children working in agriculture have far greater incidence rates of
acute occupational pesticide-related illnesses than children working in other
jobs. Exposures to pesticides can produce rash, dizziness, nausea and vomiting,
headaches, and burning eyes, as well as brain damage and death. Long-term
pesticide exposure in adults is associated with chronic health problems such as
cancer, neurologic problems, and reproductive problems.

US Environmental Protection Agency (EPA) regulations
prohibit the spraying of pesticides when any unprotected worker is in the field
or may be exposed through drift. The agency sets restricted-entry intervals
(REIs) specifying the amount of time after pesticide application workers should
not be in treated areas and requires basic pesticide safety training for all
workers. However, EPA regulations make no special consideration for children.
They do not prohibit children mixing, handling, or applying pesticides
(although regulations on hazardous work prohibit children under age 16 from
using the most dangerous categories of pesticides). Pesticide risk assessments
do not take children’s special vulnerabilities into account. REIs are set
using a 154-pound adult male as a model—they are not adapted for
children, pregnant women, or others who differ from this model.

Farmworker women and girls are exceptionally vulnerable to
sexual abuse, ranging from inappropriate or threatening comments to groping,
sexual assault, and rape. Geographic isolation, language barriers, fear of
deportation, and the desperate need for work make it very difficult for
farmworkers to report abuse, much less get help. Girls may be especially
targeted because they are young and because of a greater power imbalance that
makes it even less likely they will complain.

Despite these risks to children’s health
and safety, even the weak protections in US law are rarely enforced. Indeed, in
the 10 years following the publication of our first report, enforcement of
child labor laws overall by the Department of Labor’s Wage and Hour
division declined dramatically. In 2009 the division found only 36 cases
of child labor violations in agriculture, constituting only 4 percent of all
child labor violations, compared with 104 cases in 1998. In 2008
Congress raised the maximum civil money penalties for violations of
child labor provisions resulting in death or serious injury, and in 2009 the
Department of Labor added several hundred new labor inspectors and promised
more robust enforcement of labor laws. It remained to be seen at the time of
writing whether these efforts would result in better protection for child
farmworkers.

Although each has recently undertaken positive
steps in this direction, neither the US Department of Labor nor the EPA has made
regulatory changes to better protect child farmworkers from dangerous work and
pesticides. Many of the regulations specifying “particularly
hazardous” jobs are out of date and fail to address the serious safety
and health hazards that children face in the workplace. In 2002 NIOSH
recommended in a lengthy report that the Department of Labor update many of the
so-called “hazardous order” regulations. By early 2010, the
department had taken steps towards updating some of the regulations for
non-agricultural jobs but had not placed amending the list for agriculture on
its published regulatory agenda, despite the particularly dangerous nature of
agricultural labor and younger age at which children are permitted to do
hazardous jobs. Nor has the Wage and Hour Division enforced existing
prohibitions on hazardous work: in 2009 it cited only two violations of
agricultural hazardous orders in two cases, or 0.14 percent of the 1,432
hazardous order violations it found that year.

In December 2009, the EPA announced plans to strengthen its
assessment of pesticide health risks for children, farmworkers and others, with
a strong emphasis on risks for children in the fields. A process to amend the
Worker Protection Standard, which regulates practices related to workers’
exposure to pesticides, has been ongoing for more than a decade.

Lax enforcement of labor laws and health and safety
standards is exacerbated by workers’ fears of reporting violations to
authorities because they fear deportation for themselves or for their family
members. While many child farmworkers are US citizens, the entire family may
fear deportation if the parents are undocumented or hold short-term
agricultural visas. Labor standards and their enforcement apply to all workers,
irrespective of their immigration status. However, enforcement of workplace
protection laws often relies upon workers to self-report abuse. They are very
unlikely to do so when their employers can threaten to call the US Immigration
and Customs Enforcement agency (ICE). Workers are also unlikely to report
abuses to local police or law enforcement, since these agencies are increasingly
involved in enforcing immigration laws.

The United States spent over $26 million in 2009 to
eliminate child labor around the world—more than all other countries
combined—yet the country’s law and practice concerning child
farmworkers are in violation of or are inconsistent with international conventions
on the rights of children. International Labor Organization
Convention No. 182 on the Worst Forms of Child Labor, ratified by the
United States in 1999, prohibits children from engaging in dangerous or harmful
work. The Convention on the Rights of the Child, to which the United States is a signatory but not a party, seeks to protect children from economic exploitation,
and also from work that is hazardous or otherwise harmful. Additionally,
because farmworker children are overwhelmingly ethnicly Hispanic, the disparity
in legal protections provided to agricultural workers compared to other workers
in the United States has a disparate impact that is discriminatory under
international law. The failure of the United States to enforce existing
laws and regulations that purport to protect children working in agriculture
further violate the United States’ international legal obligations.

For the last decade, members of Congress have
repeatedly introduced draft legislation into both the Senate and House of
Representatives that would eliminate the double-standard in US child labor
laws, and apply the same age and hour restrictions to children working in
agriculture that already apply to other industries. However, none of the bills
have ever reached a vote. As this report goes to press, a House bill,
co-sponsored by over 80 members of Congress, is pending.

Key Recommendations

The US Congress should:

Amend the Fair Labor Standards Act (FLSA) to apply the same age
and hour requirements to children working for hire in agriculture as already
apply to all other working children. Congress should also raise the minimum age
for particularly hazardous work in agriculture to 18, in line with existing
standards in all other industries.

Halt its yearly approval of a rider exempting almost all farms
with 10 or fewer employees from the jurisdiction of the Occupational Safety and
Health Administration (OSHA).

Provide sufficient support to programs, such as those administered
by the Department of Education’s Office of Migrant Education, to remove
barriers to the school enrollment, attendance, and achievement of child
farmworkers and ensure that child farmworkers have access to and benefit from
the same appropriate public education, including public preschool education,
provided to other children.

The US Department of Labor should:

Dramatically increase agricultural workplace inspections
targeting child labor and minimum wage violations through its Wage and Hour
Division. Significantly increase civil money and criminal penalties within the
limits allowed by law to improve compliance with the law.

Propose and press for much-needed amendments to the list of jobs
in agriculture that deemed to be “particularly hazardous” for
children, as recommended by the Centers for Disease Control’s National
Institute for Occupational Safety and Health (NIOSH) in 2002.

The Environmental Protection Agency should:

Amend the Worker Protection Standard to impose a minimum age of
18 for all pesticide handlers.

Revise the restricted-entry intervals (REIs), which prohibit
entry into an area treated by pesticides for a specified period of time
following the application of the chemicals, to distinguish between adults
and children and impose more stringent REIs for children. Incorporate an
additional safety margin on top of what is determined necessary to ensure short
and long-term safety, and take into account the combined effect of both
occupational and non-occupational exposures.

Monitor states' enforcement of the Worker Protection Standard and
related pesticide regulations to ensure that such enforcement is vigorous and
meaningful.

All states should:

Set or raise the minimum age for agricultural work to at least 14,
with the exception of children working on farms owned and operated by their
parents.

Detailed recommendations may be found at the end of this
report.

II. Methodology

This report is based on Human Rights Watch’s field
research in 2009 and early 2010 and a review of secondary sources. We
interviewed 59 children under age 18 who had altogether worked as farmworkers in
14 states in different regions of the United States: California, Florida,
Georgia, Idaho, Michigan, New Jersey, North Carolina, Ohio, Pennsylvania, South
Carolina, Tennessee, Texas, Virginia, and Washington State. We also interviewed
11 young people ages 18-20 who had worked on farms as children. We spoke with
parents, legal services providers, nurses, doctors, social workers, education
officials, farmers, and farm operators. We also spoke to officials of the US
Department of Labor’s Wage and Hour Division and Occupational Safety and
Health Administration, the Centers for Disease Control’s National
Institute for Occupational Safety and Health, the Environmental Protection Agency
(EPA), and the US Department of Agriculture. Some interviews were conducted by
telephone. In total we interviewed more than 140 people.

For this report Human Rights Watch visited Florida, Michigan, North Carolina, and Texas. We chose these states because they allowed us to
interview both seasonal and migrant farmworkers, including migrants who were at
home and on the road, as well as children working in diverse crops. Their labor
included detasseling corn and sorghum; hoeing sugar beets, cotton, and pumpkins;
and harvesting asparagus, cucumbers, Christmas trees, tomatoes, oranges,
apples, blueberries, peaches, tobacco, and cherries. Florida and Texas are base states for migrant workers; North Carolina, Michigan, and northern Texas are destinations. Although agriculture includes both crop and livestock workers, our
interviews focused on crop workers only.

Interviewees were identified largely with the assistance of
a variety of organizations providing legal, health, and social services to
farmworkers. These workers may have been less vulnerable than those without
contact with any such organizations. Some farmworkers approached declined to be
interviewed.

Human Rights Watch interviewed several agricultural guest workers,
who are lawfully present in the United States on a short-term basis under the
H-2A guest worker program but highly vulnerable to abuse.[3]
However, children under age 18 are not eligible for the program and even those
interviewed who appeared underage maintained that they were not. Accordingly,
their accounts are not used in this report.

Interviews were conducted in English or Spanish or a
combination of the two, at the interviewee’s preference. Some persons
interviewed in Spanish were native speakers of other languages indigenous to Mexico. Most interviews were conducted privately and individually, away from the worksite;
where interviewees preferred to have another person present, this is indicated
in the notes. All participants were informed of the purpose of the interview,
its voluntary nature, and the ways in which the information would be collected
and used, and orally consented to be interviewed. Most interviews ranged from
10 to 90 minutes in length. No one was provided with any compensation in
exchange for an interview.

The statistics cited about the farmworker population are the
most recent available at the time of writing. It is notable that there is
relatively little recent nationwide data on farmworkers.

In this report “child” and
“children” are used to refer to anyone under the age of 18,
consistent with usage under international law. Except where otherwise
indicated, the names of all children have been replaced with pseudonyms to
protect their privacy and to preclude any potential retaliation. In addition,
some service providers requested anonymity out of concerns about jeopardizing
their access to farmworkers living on farms.

The term “migrant worker” can have various
meanings and, as noted below, many farmworkers were, at least at some point in
their lives, international migrants. In this report the term
“migrant” is used for workers who travel for seasonal agricultural
work, as distinguished from settled workers based on one place.

This report draws on survey data that use the terms
“Hispanic” and “Latino” to refer to ethnicity. Where
used in this report, these terms reflect those used in the survey referenced.

III. Child Farmworkers
in the United States

No one knows exactly how many children under the age of 18
are working in US agriculture.[4]
Counting farmworkers is difficult: the work changes with the growing season,
children and adults move in and out of the workforce, and migrants work outside
their hometowns and countries. Many lack telephones and mailing addresses that
are essential for most surveys conducted by the government. Roughly half of
farmworkers lack work authorization and growers employ others off the books,
giving incentives to both parties for workers not to be counted. Data about
child agricultural workers are at best several years old and not comprehensive.
Even where adults are working legally, children may not be officially employed
but their work counted towards their parents’ pay instead. Despite
grueling hours and difficult and dangerous tasks, even their parents may
consider them “helpers,” not workers. And teenagers under age 18 may
not be visibly distinguishable from young adults.

Despite the scarcity of data, conservative estimates make
clear that hundreds of thousands of children are working as hired laborers in
agriculture, making up a significant proportion of the country’s
estimated 2.3 million employed workers who are below age 18.

Farm operators reported hiring 2,636,509 farmworkers in 2007,
directly hiring 211,588 children under age 18 in 2006.[5]
Adjusting for differences in dates and other factors, researchers from the
National Institute for Occupational Safety and Health (NIOSH) estimate that
about 9 percent of directly hired farmworkers were under age 18 in 2006.[6]
These data exclude children working on their own families’ farms, for labor
contractors, or off the books and thus not reported by farm operators.[7]
Given that farmers rely on labor contractors to hire 15 percent or more of
their crop workers,[8]
and that about 497,000 children under age 18 worked on the farms on which they
resided in 2006,[9]
these figures represent significantly fewer than all children working in US
agriculture.

Farmworkers under age 18 can be found working
all across the country. Particularly large populations of farmworkers live
and work in California, Florida, North Carolina, Texas, Oregon, and Washington State.[10]Virtually no state is without child labor in agriculture, and
certainly no state fails to benefit from children’s farmwork, as the
produce that is harvested and packed by youngsters' hands may travel thousands
of miles to grocery store shelves.

A sizeable minority—somewhat less than 40
percent—of hired farmworkers are mobile, meaning that they move for work.
Most of these travel between their homes and a single location; only about 10
percent “follow the crops,” traveling to multiple locations as the
season progresses.[11]Migrants travel north each year through three rough
“streams” in the eastern, mid-western, and western regions of the
country.

Farmworkers are overwhelmingly poor: poverty among farmworkers
is more than double that of all wage and salary employees in the United States.[12]
The average individual annual income of crop workers was between $12,500 and $14,999
in 2005-2006, the most recent year for which data are available. Total family
income averaged between $15,000 and $17,499 annually.[13]
Non-supervisory crop workers are the poorest of all agricultural workers: in 2006
their median weekly earnings were less than that of livestock farmworkers,
janitors, and maids.[14]
“In migrant camps as soon as you are old enough you have to go to work to
earn for your family,” the director of a program providing social
services for migrants explained. “Typical families we work with [in Florida] earn $7,000 to $10,000 a year. Per family.”[15]

The national impact of the recent US financial crisis on
farmworkers has not been documented. Human Rights Watch received reports in
some places of persons returning to farmwork after having lost preferable jobs,
and reports elsewhere that such a shift had not occurred as anticipated since
many people are simply unwilling to do such hard and low paying work. We heard
reports in Florida, where some workers had been able to stop migrating to other
states by finding construction and other work during the off season, of workers
returning to Mexico and remaining there rather than resuming migration. Elsewhere
service providers said that workers they had expected to return to Mexico
instead remained in the United States, in part because crossing the border
(in either direction) had become even more expensive and dangerous.[16]

IV. The Youngest
Workers

I’ve been working since 11. The age to start
working at this ranch is usually 12 but I started at 11. My parents said we
needed to earn as much as possible because we had a lot of debt. Everything [I
earn] goes to my parents because they know what to do with it.

My sister said all day, “Hurry up!” I was a
little kid. It was hard at first to carry boxes, count 24, and pack boxes. I
used to do stuff I couldn’t even imagine. “Pick up this,” can
I do it? . . . I was a kid. I was used to playing with toys. They took me to
their fields and I was like, “Where am I?” They gave me basic
instructions, pick greens, cut them, package them, weed the fields. . . . You
can’t imagine how hard it can be to start a year younger than
you’re legally qualified to work. I had to learn things fast and learn
the ways of the field. . . .

Growing up has been hard. . . . When I’m in the
fields working and I wait for people to fill the boxes, I look around and I see
12 year olds working around. I know how they feel. I used to feel like that.
They have a face that says they don’t want to be here. They start getting
used to the fact that they have to work. Putting in more effort. Experiencing
more. They learn if they work faster they earn more and there will be less
debt.

—Jose M., age 17, Saline, Michigan, August 24, 2009

I don’t know about it [child labor]. I don’t
look for it but I don’t see it.

—Farm operator, Michigan, August 28, 2009

Children typically described going to work full-time outside
of school at age 11 or 12. Even very young workers, ages 7, 8, 9, are not
difficult to find working in the fields, however. Human Rights Watch
interviewed children who said they picked strawberries at ages seven and eight
in Florida, picked blueberries at age seven in Michigan, picked and shucked
green peas in Virginia at age eight, and hoed cotton at ages seven, eight, and
nine in Texas. “When I was seven I worked in the field next to our house
because they needed help with strawberries,” 14-year-old Olivia A. told Human
Rights Watch. “We would turn in some card things and they would give us
money and we would give it to my mom. I gave it to her to buy food.”[17]
Her older brother James A. also said he started working that year, at age
eight.[18]
Children this young typically work only part of the day and attend school, at
least when their families are at home and are not migrating to work elsewhere.

The concept of “underage” labor in US law is not
as clear in agriculture as it is in all other labor sectors. Under the law, on
small farms with parental permission, outside of school hours, there is no
minimum age for workers. Children ages 12 and 13 can work for any size farm
with their parent’s consent outside of school hours; children 14 and 15
can work on any size farm without parental consent outside of school hours;
there are no restrictions on employing children ages 16 and older, including in
hazardous agricultural occupations. By comparison, in nonagricultural settings,
employment of children under age 14 is prohibited, and children ages 14 and 15
may work only in certain jobs designated by the Secretary of Labor and for only
limited hours outside of school. Children ages 16 to 18 can work in
nonagricultural occupations but cannot do hazardous work.[19]

Despite these weak laws for agriculture, some growers and
farm labor contractors still violate the standards in their hiring practices,
including:

hiring children under age 16 to work during school hours
or in hazardous work;

hiring children under 14 to work without their
parent’s consent; and

hiring children under 12 to work on farms that are not
“small,” meaning farms that have about 7 or more employees.[20]

In interviews with Human Rights Watch, most children said
that no one asked them their age or for proof of it. “Age doesn’t
matter,” said Marta V., age 13, who had hoed cotton since age seven in Texas.[21]
A young woman who worked in California starting at age 12 said that no one
asked her age or for any papers.[22]
At one farm in Michigan and one in Texas, children alternately told us they had
to be 11 or 12 to work: “Only the little ones they ask their age but 11
and up is ok.”[23]

Most children said they started working full time at age 11
or 12. Human Rights Watch interviewed boys and girls who at those ages were
working adult shifts picking oranges and cucumbers, pulling asparagus, cutting
greens and Christmas trees, hoeing cotton and cucumbers, and weeding by hand.

Children described how they felt when they first worked. A girl
who started cutting greens and pulling green onions and radishes full time at
age 12 said, “At first I thought it was cool but then when I worked
actually it was miserable. I cried every day.”[24]

Other children emphasized the physical hardships. A 12-year-old
boy said on his first day hoeing at age 11 he got very tired: “I felt
weak. My back hurt. I got blisters on my hands and on my feet when I took off
my shoes.”[25]
Another boy described his first day of hoeing cucumbers at age 12: “The
first day I was exhausted. It was my first job.”[26]

Older teens and young adults often described how their
initial enthusiasm to contribute to the family later evolved to despair in the
face of such tedious, grueling, and poorly paid work. The account of Hector H.
from Idaho was typical of those who started working at young ages: “At
first I liked it, but then I realized it wasn’t that good. It was too
hard with the sun. It was boring. It’s a long day to be working. At [age]
eight or nine I was hoeing cotton. There were big weeds, three or four feet
tall. . . . It gets harder by the year, doing the same thing every year. You
get tired of it. I’ve pretty much done the same thing since I was eight
years old.”[27]
Mauricio V. told us: “I thought it would be heroic and honorable. I couldn’t
wait until when I turned 12 and they let me work in the summer. . . . I
definitely feel different about it now. . . . I was trying to find something to
be proud of, an honorable thing to be. Like ‘yes, I do support my family
by working.’”[28]

Why Children Work

We can hire as many adult workers as we need. We
don’t need to hire children.

—Tony Marr, general manager for Adkin Blue Ribbon
Packing Company, assessed child labor penalties in 2009 after a US Department
of Labor investigation found children as young as six years old picking in its
fields[29]

Children told Human Rights Watch that they worked to help
their families buy food, to repair the family’s truck, to pay the phone
bill, and to buy school clothes and supplies. For example, Luz A., who said she
started working at age nine, told Human Rights Watch: “I really
didn’t decide to work. I had to because my mom was having difficulty
raising us and providing us with everything we needed. It was ok with me even
though it was hard work because I was helping out. It paid for food for our
family to eat and school, the things [for school] they were always asking for
us to bring.”[30]
Andrea C. said: “I feel pressure to work sometimes. When we get all
filled up with bills, we need the money. The car bill, the phone bill, the
insurance. I have two older brothers but they got married so I’m the only
one who helps my parents. And they’re getting kind of old.”[31]

Financial need and a sense of family responsibility can push
children to prioritize work above their own education and health. Ana Z., who
was hoeing cotton with a fever, told us: “I have to, I have to help my
mom. . . . So at least me, I do my 10 hours. We don’t miss out. We go
every day, even sick. We’re just trying to make a living.”[32]

When asked, parents gave a variety of reasons for sending
their children to work. Some described a financial crisis or the need to meet
basic expenses. Some said that they had to bring their children to the fields
anyway, that they could not afford childcare, and wanted to keep their families
together, especially when migrating. In the fields even young children who are
not working are exposed to pesticides, heavy machinery, and other hazards.
“I bring the kids here because I can’t pay a babysitter,”
said a woman caring for her four-, six-, and seven-year-old grandchildren.
“It’s dangerous. They could get bitten by an animal. Run over by a
machine.” Childcare would cost her $15 per child per day, she said, but
she earns only $45 to $50 a day hoeing cotton.[33] Human Rights Watch
also visited labor camps where teenage girls and women rotated to provide child
care in the camps during the workday because farm operators had prohibited very
young children from being in the fields.

Some children described waiting to work until they turned
12, suggesting that the law influenced their families’ decisions to send
their children to work. “Teachers at school know when kids turn
12,” Jose M. told us. “They see the cuts on their hands. They know
a child at 12 goes to work. No if’s, and’s, or but’s.”[34]
Others described a family and community tradition that made it normal to work
and employers who were willing to hire them.

Several parents expressed regret over having sent their
children to work and over the long-term effects it had.[35]
One woman, who said her perspective changed after enrolling in a high school
equivalency (GED) program, told Human Rights Watch: “When you hear the
children talk, you feel bad because you’ve taken a whole childhood away
and you don’t realize it because you’re thinking about trying to
make payments. . . . For my kids summer was not summer. They had to work.
It makes me feel guilty.”[36]
One mother whose 11-year-old daughter worked hoeing cotton and caring for her
younger brothers said, “I tell my daughter, ‘I’m so sorry I
stole your childhood from you.’”[37]

V. Exploitation: Wages
and Hours

Children typically work for long hours and poor pay. Many
described workdays as long as fourteen hours, seven days a week at the peak of
the harvest. Most children Human Rights Watch interviewed said they earned less
than the federal minimum wage.

Excessive Working Hours

“You’re put to work every day, you hardly
get a break unless it’s raining. Kids get so happy [when it starts to
rain] that they’re screaming.”

—James A., age 15, Plant City, Florida, March 21,
2009

My son, he needs his play time. He can’t work 30
hours a week. He can work three to four hours a few times a week. . . . As an
employer you can’t say “I’ll hire 13-, 14- year olds.”
No! I don’t support that.

—Farm operator whose 12-year-old son works on his
farm, Michigan, August 28, 2009.

Children described the long hours they worked, over which
they typically had no control:

James A., age 15, who worked in a blueberry packing plant
in Michigan the previous summer, said that sometimes he worked as long as
from 7 a.m. to 2:30 a.m. the following morning: “When I got home I
didn’t even have time to take a shower. During the breaks I’d
need to get a little bit of sleep. Lunch was only 30 minutes. I
don’t know if painkillers would have helped out. Sometimes I took
coffee. I worked seven days a week and we would go beyond 40 hours. Twice
I got to 80 hours.”[38]

Olivia A., age 14, described picking blueberries in Michigan: “I would wake up at 5 and start working at 6 [a.m.]. We’d come out at
6 or 7 [p.m.], depending on if it rained and how quick we worked. We
worked seven days, all day, except the days it rained. That was the only
time we got a break. I felt happy we could go home. We didn’t have
to be in the sun no more.”[39]

Sam B., age 17, who said he sometimes hoed cotton in Texas for up to 14 hours a day, told us: “We have to work 10 hours for sure but if
they want us to work more, we work 12-13 hours. It depends on whatever
they what. You have to put in at least 10 hours, you can’t just go
home.”[40]

Felipe D., age 15, said he worked from 6 a.m. to 6 or 7
p.m. deflowering tobacco in North Carolina. “At 12 [noon] we get an
hour break,” he said. “The rest is just hot sun and
working.”[41]

Luz A., age 18 and from Florida, explained that the previous
summer: “In the morning we’d start around 7 [a.m.] and end at
about 8 [p.m.]. We’d work a long time. There really ain’t no
hours. It depends on how fast everyone finishes the section. No one can
leave. They block the exits and say everyone has to help out. In a day you
do two sections, sometime they put their cars there so we couldn’t
drive out. . . . If you left early they’d end up kicking you
out.”[42]

By the end of the day, children said, they were exhausted.
“You change out of your clothes if you can make it and pass out,”
said Elisabeth S, about working when she was in high school. “Taking a
shower, it doesn’t happen. If you had the energy you would eat, but you
would usually sleep, wake up, then shower and eat. . . . “I hated to
sleep because sometimes all you dreamed of what working, thinking, ‘I
need to be working.’ It’s so tiresome. And then you get up and think,
‘I have to go to work?’”[43] Thirteen-year-old
Marta V. told us: “Really, I don’t have a good day when I work. It’s
just so tiring. After 12 [noon] you just want the time to go by quick, to come
home and rest.[44]
Even older teens described the toll of having no days off. “Every day it
gets harder with no rest,” 15-year-old James A. explained.[45]

US federal law permits children to work in agriculture for
unlimited hours, outside of school hours. In non-agricultural jobs 14- and
15-year-olds cannot work before 7 a.m. or after 7 p.m., except during the
summer when they can work until 9 p.m. They may not work more than 3 hours on a
school day, 18 hours in a school week, 8 hours on a non-school day, and 40
hours in non-school week.[46]

Workers’ powerlessness to control their hours combined
with the unpredictability of agricultural work leave them in a constant bind:
some days they may work past the point of endurance; other days the weather,
slow demand for a crop, or a poor harvest leave them without enough work to meet
their most basic needs.

Earning Less than the Minimum
Wage

They don’t pay us enough for the hours we work. I
would like them to pay us enough and give us some benefits. We’re out
there, a whole bunch of young people. . . . It’s hard but since you need
the money you don’t have a choice. It doesn’t matter if they pay us
a little because you need the money. That’s why I’m working. . . .
I make $300/week. $200/week if it rains.

—Sam B., age 17, who said he typically works at least
55 hours, 5 and a half days a week when not in school[47]

Like adults, many children in farmwork earn less than federal
minimum wage, which was $7.25 an hour as of July 24, 2009, up from $6.55 the 12
months prior to that. Most children Human Rights Watch interviewed said they
were paid less than the minimum wage—many earned far less. For example:

Antonio M., age 12, in North Carolina said he picked
blueberries from 6 a.m. to 11 a.m. or 12 noon. He could fill five or six
boxes in a day, at $3.00 a box.[48]
At best, therefore, he made $18 for five to six hours’ work, or
$3.00 to $3.60 an hour. For five hours of work at the federal minimum wage,
Antonio should have earned $36.25, more than twice what he was paid.

In Texas, children and adults consistently reported making
$45 to $50 a day for 10 hours or more of hoeing cotton, or at best $4.50
to $5.00 an hour. At federal minimum wage at the time Human Rights Watch
visited, they should have earned $65.50 for 10 hours’ work.

Olivia A., age 14, said she made $300 to $350 a week the
previous summer picking blueberries in Michigan from 6 a.m. to 6 or 7
p.m., seven days a week except when it rained.[49]
Her brother said he made about $200 a week.[50]
At best they were earning $4.16 and $2.38 an hour, respectively. At
federal minimum wage at the time, for 84 hours of work a week, they should
have earned $550.20 a week.

In one part of North Carolina, we heard reports of some
employers paying children a lower hourly wage than adults. A migrant health
outreach worker whose own child worked told us: “Sometimes they just pay
part for children, $2-3. Or they don’t pay. Patrones [bosses] talk
with parents and say, ‘I’ll let your kid enter but I’ll pay
half of what you earn.’ But they have to work the same as an adult or
they don’t let them enter.”[51]

With some exceptions, agricultural workers are entitled to
minimum wage. These exceptions include workers on small farms and some piece
rate workers, including certain local hand harvest laborers and non-local
children ages 16 and under who are working alongside their parents.[52]
Where workers are entitled to minimum wage, agricultural
employers may pay either an hourly rate or a piece-rate, but those who
pay on piece-rate must by law ensure that the earnings for all hours worked in
a week are sufficient to bring the average hourly wage up to minimum wage,
unless they fall under one of the previously mentioned exceptions. “They
have to make at least minimum wage,” a cucumber farm operator in Michigan explained. His workers do, he said “if pickles are going well. If not, I
have to kick in.”[53]

All agricultural workers are deprived of overtime pay
protections as a result of a special provision in the Fair Labor Standards Act
(FLSA). Most other workers, by contrast, are required to be paid one and a half
times their regular rate of pay for each hour worked in excess of 40 hours per
week.[54] Agricultural
workers are also excluded from the protections of the National Labor Relations
Act and do not have the right to organize and collectively bargain with their
employers, except in the handful of states such as California in which state
laws protect their right to organize.[55]

Laws that deny farmworkers protections enjoyed by other
workers, combined with poor enforcement of existing laws, contribute to
farmworkers’ poverty and financial desperation that compels children to
work and makes farmworkers even more vulnerable to exploitation.[56]

Although government data suggest that crop workers on
average make slightly above minimum wage, these figures are likely inflated.[57]
There are several reasons for this, discussed in more detail below. First, in
situations where workers are paid a piece rate, children often work with a
parent in the fields, but only the parent is listed on the payroll. The
parent is shown as earning more than the minimum wage, because the children
make the parent’s productivity look higher. Second, employers often
falsify payroll records to show fewer hours than the employee actually worked.[58]
Third, many employers make illegal deductions from their employees’ wages
which reduce their gross below the minimum wage, forcing the workers to pay for
goods and services that benefit their employer. “Most farmworkers in
Florida are not making minimum wage,” explained Gregory Schell, of
Florida Legal Services Migrant Farmworker Justice Project. “Kids
aren’t different and in fact, there probably is a higher percentage of
the underage workers earning below the minimum wage than among the general
farmworker population.”[59]
Several factors make children easier to exploit than adults: children may be
more credulous, less experienced, and less likely to question authority. They
also may have even fewer options to change jobs, since their employment in
other labor sectors may be illegal.

Even when farmworkers are paid minimum wage, the
unpredictability of the work and no guarantee of minimum hours drive down their
income. Farmworkers only get paid for the hours they work. They typically
receive no paid sick days, no health insurance, no paid vacation leave, and
have no job security. Among other things, average minimum wage data do not take
into account unpaid hours, days, and weeks waiting out weather or traveling to
remote fields.[60]
Families may use their last dollars to migrate only to find there is no work
when they arrive. Those who do find work may find themselves without income
when it rains and between harvests.[61]
Some workers in Florida said their employers required, as a condition of
providing housing, that they remain permanently available and not seek work
with others, even when the employer did not have work for them.

Unscrupulous practices and wage fraud

Some children described unscrupulous practices and outright fraud
by labor contractors and growers that further reduced their pay. For example,
Walter R. and his parents said that their employer had required them to sign a
document promising to return $30 a week so that their wages would appear higher
than they actually were. The teenager told us that a “government
inspector,” whom they could not identify, had recently come to their
worksite and questioned him and his family—“we said we work for
$7.25.”[62]
His mother explained, “My husband was afraid to denounce because he said
we would get fired.”[63]
Marcos S., whose account is given above, said that he was not paid for cutting
Christmas trees after 5 p.m.: “If they need you, they hold you late. But
when it comes to [pay]check time they say 8 to 5. They say they don’t remember
holding you later. But if you get off earlier, they remember.”[64]
A paralegal in Florida described cases he had worked on in which employers or
contractors required workers to under-report their hours or clock in only
after, for example, picking the first flat of strawberries.[65]
The practice of withholding but not reporting social security money from
workers’ paychecks is particularly widespread when the labor contractor
is responsible for paying taxes.[66]
In a survey by the Southern Poverty Law Center of some 500 Latino immigrants in
five states, 41 percent said they had experienced wage theft in which they had
not been paid for work performed.[67]

Deductions for transport were commonly described by children
working in tobacco in North Carolina, who said that their employers charged
them $10 to $30 a week to take them to the fields.[68]
Children told us they were required to purchase their own basic safety
equipment and tools such as gloves, hoes, and knives.[69]
For example, Elisabeth S. said that when she first started working in
Washington State: “I couldn’t afford a new hoe so I was using a
half hoe for two days. My sister would switch with me for 15 minutes. It was
old and would give you splinters if you didn’t have gloves. Then my boss
gave me one but took it out of my check. They don’t give you
nothin’.”[70]
US law prohibits crediting against minimum wage obligations items furnished
primarily for the employer’s benefit—these include tools of the
trade.[71] Daily
transport to and from work may generally be credited but typically not
transport from the point of hire to a distant jobsite.[72]

Employers or contractors may also cut wages by deducting
rent or running a “company store.” “By the time they get
done, there’s no paycheck left,” explained Josie Ellis, the director
of Vecinos Inc. Farmworker Health Program.[73]

Piece rate and child labor

Workers who harvest fresh fruits and vegetables are often
paid on a piece-rate basis (such as a flat rate for each box of fruit or bag of
apples they pick) rather than an hourly rate. Diana G., age 16, explained how
the piece rate system worked for blueberries in North Carolina. “You fill
liter buckets to the top,” she said. “If you don’t go to the
top, you have to go back. You don’t make much. Two buckets is $5.
It’s really hard because blueberries are really tiring. It takes 30 to 45
minutes to fill one bucket. Later on when the blueberries get bigger it gets
faster. You get a token when you turn in the bucket. If you have leaves or
sticks in it, you get a yellow ticket—$1 taken off.”[74]
At this rate, Diana was earning $3.33 to $5.00 an hour.

A paralegal working with farmworkers in Florida, himself a
former farmworker, explained that it is very difficult for workers to
consistently pick enough on piece rate to earn minimum wage. “I rarely
find a worker who can constantly pick a certain number of tubs in one
year,” he told us. “You can’t do it.”[75]

From an employer’s perspective, piece rate
incentivizes productivity. But for workers, piece rate adds additional pressure
to work as quickly as possible and avoid taking breaks, sometimes even at the
expense of drinking water or cooling down when overheated.[76]
Luz A., who had worked since age nine, said that when picking blueberries on
piece rate she does not stop and rest: “We keep on going because if we
were to sit down and take a break we’d make even less.”[77]

None of the children Human Rights Watch interviewed reported
that their employers had made up the difference between the piece rate they
received and minimum wage. Moreover, when children work off the books and what
they harvest is counted towards their parent’s check, this creates the
appearance on paper that the adult has earned a higher wage. For example,
although a farm operator in Michigan said that his employee tracked the hours the
farmworkers worked, when Human Rights Watch reviewed records of the amount
picked and payment, these were recorded as if only one person, rather than a
family group, had picked the cucumbers. When Human Rights Watch noted that
families with children 12 and younger were working together to pick the
vegetables, an office employee said: “It should be one person but I
don’t know—they can pick it any way they want. They can get others
or do it themselves.”[78]

Others described similar arrangements. A man who had three
children and his wife working with him harvesting onions in Texas told us that
with five people working on piece rate, “We made $80 on the first day.
There are days where we can do $200. But sometimes we don’t work all
week.”[79]
At these rates, each family member earned, on average, $16 to $40 a day.

Child labor in these instances, regardless of whether the
children themselves are exploited, facilitates wage exploitation of adults by
potentially preventing the adult from receiving the legal minimum wage.
Attorney Gregory Schell explained: “Most farmworkers are unaware that the
federal minimum wage applies to piece-work tasks. Therefore, so long as workers
are paid the promised piece-rate for the buckets/tubs/units they pick, they
(mistakenly) believe they have been properly paid.”[80]

Where employers fail to ensure that piece rate workers make
at least minimum wage, a piece rate system creates incentives for employers to
allow young children to work and for families to send their children to work,
even if they earn very little.[81]
For example, a young woman from California said she started working at age 14
after her mother could only find work in the fields: “We realized the
more she [my mother] picked the more she earned. We all would help on weekends .
. . . My mom was the only one registered so the check went to her. . . . On the
weekends we were five people—parents plus three kids.”[82]

VI. Education and
Farmwork

We miss about 2-3 weeks of school. It starts, then we go
back. To me it’s normal because I don’t remember starting on the
first day of school.

—Elias N., who subsequently dropped out of school,
age 16, Plainview, Texas, July 21, 2009

Schools are turning a blind eye. We know that farmworker
kids are not getting enrolled or not getting enrolled in the right places.

Children who try to work and go to school at
the same time, or who migrate and miss school, find that their education often
suffers. A third of child crop workers drop out before graduating from high
school, and without a diploma are left with few options besides a lifetime of
farmwork and the poverty that accompanies it.

Thirty-three percent of US-born farmworkers had dropped out
of school in 2005-2006, the most recent year for which data are available;
among all farmworkers the median highest grade completed was 8th.[83]
By comparison, the national dropout rate was 8 percent in 2008 (18.3 percent
for Hispanics).[84] The
rate for migrant children may be considerably higher. In California, the state
with the largest migrant student population in the country, a 2007 study
estimated that drop-out rates among migrant children were well over 50 percent.[85]
Human Rights Watch interviewed farmworker children who had been held back in
school one or more times, children who had never had anyone in their families
graduate from high school, and youths who had dropped out.

Several factors explain this. Migrant children often end
their school year early—in April or May—and return weeks or even
months after school has already started. Fifteen-year-old Ana Z. said: “I
don’t remember the last time I got to school registered on time. . . . I
got out of math because I was a disaster. I would tell the teacher, ‘I
don’t even know how to divide and I’m going to be a
sophomore.’ I’m going from place to place. It scrambles things in
my head and I can’t keep up.”[86] Fourteen-year-old
Olivia A. said that she returns from Michigan to school in Florida late every
year. On her first day at school:

I felt kind of scared because I didn’t know what to
expect because people look at you as kind of dumb. You have to catch up with
what other people already know. Every class starts out knowing this stuff. At
the end you have exams but you weren’t there. . . . Hopefully it
won’t get worse once I’m going into high school. My sister and
brother dropped out. They migrated and went to school. My brother dropped out
the month we came back. The first time we [migrated]. No one in my family has
graduated. My sister barely did grade 8.[87]

Jose M., who said he starts school when his family goes back
to Texas in November and leaves school early in May to migrate to Michigan,
said: “I miss about three months and that’s a lot. . . . I’ll
do senior year but don’t know if will graduate because I will miss a lot
of class.”[88]
And Luz A. told us that it was only through the help of her school’s
migrant advocate that she was able to recover from missing the first month of
school each year: “We get graded on things we weren’t there to
learn. . . . I’m finally back on track [at the end of March].”[89]

Migrant farmworker children, on average, change schools
three times a year, according to earlier studies,[90] a
figure that is consistent with Human Rights Watch’s interviews. Some studies
report children moving through as many as 10 different school districts in a
single year.[91]

Beyond the sheer challenge of transferring schools, the
differences between states in start dates, curriculum, and credits also make it
harder for migrant children keep up. For example, when Human Rights Watch
interviewed working children in Michigan, school had already started in Florida and Texas but not in Michigan. Emily D. explained: “We don’t go in Michigan because school starts late there. I would only go for a day. I’d rather go
and help my dad find pickles there. . . . You get behind a lot. Your grades go
down. You don’t really learn much.” She said that when she started
the 10th grade late, “I thought, ‘Oh my God I’m so
behind.’”[92]

A migrant education professional at Immokalee High School in Florida, explained that schools in different states have different criteria for
graduation and not all classes transfer. “This frustrates a lot of kids
that not every state is on the same channel. This contributes to some kids
saying, ‘Screw it, I’m out of here.’” He added, “Some
parents put them in school up north or don’t because they don’t
know how long they’re staying. Those kids when they come in October,
November don’t get credit because they’re not in school so when
they finish the semester they have a big fat F. That messes up their GPA [grade
point average].”[93]
“When they start teaching here [in Michigan], then we go down there [to Texas], they have already moved on,” said Andrea C. “It sucks. I wish I were
there.”[94]

Children who try to combine long work hours and school, such
as Marcos S., whose experience cutting Christmas trees is described above,
often find that their schoolwork suffers. Jaime D. explained how he ended up
dropping out of school after he started picking tomatoes at age 16 in central Florida: “I wanted to work and still go to school but I couldn’t concentrate on
both. I didn’t know how to do both.”[95]
His younger brother also dropped out of high school to pick tomatoes, he said.
A study of migrant farmworker students in south Texas found that migrant
students were more likely than non-migrants to miss and arrive late to school,
sleep in class, and study fewer hours weekly. Migrant students also reported
fewer hours of nightly sleep, fewer hours spent with their friends, and more
minor illnesses than non-migrant youth.[96]

Migration and afterschool work also prevent children from
engaging in the extra-curricular activities that help keep teens in school. Youth
described not being able to play soccer or football or join the dance team, and
missing prom and homecoming. A 14-year-old girl in Texas explained: “The
8th graders went to Washington this year but I didn’t get to
go because it cost $800. Then it got cancelled because of the ‘flu so
they went in the summer but I was here.”[97]

Many children described an environment in which they fall
behind at young ages and graduating from high school is rare. We spoke with a
nine-year-old girl going into the 3rd grade who said she had flunked
the 2nd grade and been held back a year. She said she works in the
fields when not attending summer school.[98] “I
don’t know if I will finish school because it’s very difficult but
hopefully I will,” said 15-year-old Elena R. who works periodically in
the fields after school. “None of my brothers and sisters finished
school.”[99]
“Most people I know don’t want to go through being behind so they
drop out of high school,” said 18-year-old Luz A. “Most of my
friends have dropped out. Little by little they’ve been dropping
out.”[100]
And a 14-year-old girl who said that no one in her family had graduated told
us: “If I finish school, I’m going to shine like a peacock.”[101]

Children who have recently entered the United States from other countries may not know how to access the US education system or may be
unable to afford the lost wages. A boy who came to the United States alone at age 15 after his parents died said: “I want to go to school but I have
to work. I don’t have time. If I had the chance to work and study I would
study.”[102]

The US Department of Education’s Office of Migrant
Education runs several programs to support migrant children’s access to
education. These include the Migrant Education Program, which identifies
migrant children and provides education and support services, such as remedial
instruction, school record exchanges, and counseling and assessment services;
the High School Equivalency Program (HEP), which helps farmworkers and their
children who are 16 or older to achieve a General Education Development (GED) certificate
and gain subsequent employment; and the Migrant Education Even Start (MEES),
which focused on improving literacy among farmworker families. The Office of Migrant
Education also provides $3 million per year in grants to individual states that
cooperate with other states to provide direct education and support services to
migrant children whose education has been interrupted.[103]

During the 2003-2004 school year, the Office of Migrant
Education served more than 488,000 children, but these represented only 54
percent of children eligible for its programs.[104]

VII. Health and Safety

It’s not the same as someone who works in
McDonald’s for minimum wage because this kind of work wears your system
out. You’re exposed to harsh nature, pesticides, all other kinds of
chemicals, herbicides, fungicides. Farmworkers are the first line of contact.

Working with sharp tools and heavy machinery, exposed to
chemicals and extreme temperatures, climbing tall ladders, lugging heavy
buckets and sacks, children get hurt and sometimes they die. Agriculture is the
most dangerous industry open to young workers, according to the Centers for
Disease Control’s National Institute for Occupational Safety and Health
(NIOSH),[105]
and the rate of occupational fatality for all workers in crop production was almost
nine times the national average in 2008.[106] From 2005 to
2008, 43 children under age 18 died from occupational injuries in crop
production—27 percent of all children who were fatally injured at work
during this period.[107]
In 2000, the most recent year for which data are available, the risk of fatal
injuries for all agricultural workers ages 15 to 17 was 4.4 times that of young
workers in other workplaces.[108]

Other common health hazards of agricultural work include
fungal infections, contact dermatitis from plants and chemicals applied to
them, hearing loss from proximity to loud agricultural machinery, eye injuries
and irritations, and transportation injuries while traveling to and from work
and between fields.[109]

In interviews with Human Rights Watch, children routinely
described small accidents, and some more serious. Rarely did they say they
sought medical care. Underreporting of injuries is, in fact, substantial, and
it is argued that traditional sources of data are not reliable.[110]
“I see a lot of them get hurt,” a community health worker in Florida told us.”[111]

According to NIOSH, young workers’ “biologic, social,
and economic characteristics” cause them “unique and substantial
risks for work-related injuries and illnesses.”[112]
These characteristics include rapidly growing “organ and musculoskeletal
systems, which may make them more likely to be harmed by exposure to hazardous
substances or to develop cumulative trauma disorders”; and less
experience, training, and knowledge about how to work safely, what their rights
are, and what they are not legally allowed to do.”[113]

In addition to injuries actually suffered on the job,
farmworker children’s health is also affected by substandard farmworker
housing, low incomes that result in poor diet, pregnant farmworkers’
exposure to pesticides and lack of access to adequate prenatal health care, and
mental health problems related to poverty, migration, and drug and alcohol
abuse in farmworker camps.[114]

Work with Dangerous
Machinery, Equipment, and Tools

Children described working with heavy machinery, using
knives and chainsaws, and climbing tall ladders to pick fruit. As noted
throughout this report, US law allows children to do hazardous work in
agriculture at age 16, compared with an age limit of 18 for all other hazardous
jobs.

Tractors, trucks, and other heavy machinery

Children may legally drive tractors of over 20 horsepower
take-off at age 16, and at age 14 if trained and certified.[115]
Tractor overturns were the leading cause of death for all farmers and
farmworkers who died from work-related injuries between 1992 and 2007.[116]
As discussed below, roll-over protective structures greatly improve tractor
safety but were missing from 41 percent of tractors in 2006.

Human Rights Watch interviewed several boys ages 16 and
older who said they drove tractors.[117]
Jose M. described his work, which also involved hitching a wagon to the
trailer, an activity that is recognized as carrying additional risks: “I
hook up the trailer wagon and go to the field,” he explained. “I
organize the boxes in the wagon so they don’t fall off on the way to the
barn. I do the hitching. You could easily break your arm hitching. You have to
know how close you’re getting to the wagon so you don’t hit
it.”[118]

Children are also at risk of getting struck by, run over, or
entangled in other machinery. Jose M. described being in an accident when the
trucks transporting the workers to an onion field collided: “The back
window of the truck broke on our heads. I fell off the truck. My mom hurt her
knee. My aunt and uncle got hurt. . . . I had lots of cuts on my head from the
broken glass. I got stitches.”[119]

Other reports of children’s work-related deaths
include:

In December 2007, 17-year-old Edilberto Cardenas died on
his first day on the job picking oranges in Florida. According to the
sheriff’s department, he climbed off a ladder to empty a bag of
oranges in a loading basket and a truck backed into him.[120]

In December 2006, a 10-year-old boy accidentally ran over
his 2-year-old brother while driving a pickup truck pulling a trailer that
his parents were filling with oranges in a Florida grove.[121]

In early summer 2004, a 12-year-old boy working for hire
in Iowa was crushed between a hay wagon and a truck bed as he was hitching
the wagon to the truck.[122]

On August 15, 2002, a 14-year-old farmworker in Ohio died
after falling into a cattle feed grinder/mixer. The boy was using a
handheld hay hook to drop hay bales into the operating grinder from the
top of a stack of hay bales. He apparently lost his footing, slipped, and
fell into the grinder.[123]
Children under the age of 16 may not legally operate or help operate a
feed grinder.[124]

Knives, chainsaws, and other sharp tools

[When I was 12] they gave me my first knife. Week after
week I was cutting myself. Every week I had a new scar. My hands have a lot of
stories. There are scars all over.

—Jose M., age 17, Saline, Michigan, August 24, 2009

Children regularly work with sharp tools, from hoes and
kitchen knives to chainsaws. Sometimes they cut themselves. Children under the
age of 16 may not legally operate a power-driven circular, band, or chain saw.[125]

Children cutting kale and collard greens in southeastern Michigan showed us fresh cuts they got through their gloves. Robert L., whose hands were
laced with scars, said he had been cut “so many times” cutting
greens. He worked with a 6-inch knife. “You’re bound to get
sliced,” he said.[126]
Andrea C. showed us two fresh punctures and said, “I poke myself. A bunch
of blood comes out. . . . My brothers when they were still here, one got cut
bad. A lot of people get cut. Sometimes you get so close to chopping your
finger off! Sometimes you’re going really fast and you don’t notice
and ah!”[127]

Hector H. in Texas showed us an inch-long scar on his
knuckle that he said he got working in Ohio the year before while making boxes
to pack corn: “There was a thin string, I put my hand under a box. . . .
I went to the hospital the same day and then came back and worked. I got four
stitches. It happened about 9 or 10 a.m. I finished at the hospital about 11. I
was making boxes but I couldn’t move my thumb . . . but the guy told me
to go to work.”[128]

Lucas F. said he cut his finger in a Michigan packing house:
“When the beans come out on the shaker, they shoot into the machine that
cuts the beans. Sometimes the machine gets stuck and you have to pull it back.
A bunch of people cut themselves.”[129] Maria M. from Idaho described using a small knife while weeding sugar beets. “If you wanted to work
fast you would use a knife. . . . It’s not always safe because if
you’re kneeling down you have to be careful not to cut yourself. I
wrapped it with a sock.”[130]

In North Carolina, Marcos S., quoted above, said he first
cut Christmas trees with a chainsaw at age 12, and used one regularly from age
13.[131]

Ladders

Children described climbing tall ladders carrying heavy
containers to pick fruit. In the mornings, trees and ground are often wet with
dew. Workers often place one foot on a branch or use the top two steps of the
ladder to extend their reach, and pick with one or both arms over their head
reaching for fruit.[132]
A young man who picked cherries, pears, and apples around Yakima, Washington, as a teenager said: “You carry 20-30 pounds in your bag. . . . In the
morning it’s pretty wet and the ladder gets wet. If you take a wrong
step, you’re down from the ladder. They’re 13-foot ladders so
they’re pretty high.[133]
A boy who had picked oranges in Florida told us: “It’s really high.
When we didn’t have ladders, I had to climb the trees. Twice I fell from
the top of a ladder. I grabbed a branch and broke my fall.”[134]
Children under the age of 16 may not legally work from a ladder at a height of
more than 20 feet.[135]

Failure to use protective gear

Human Rights Watch researchers saw many children working
without gloves and some, including a 10- and a 12-year-old, working barefoot.
Most said no one required them to wear protective gear; if anyone, it was their
parents, not their employers.

Some children told us that gloves were uncomfortable,
cumbersome, or bruised the fruit. Raul L. explained why he did not wear gloves
while picking mint as a teenager in Idaho: “Sometimes it hurts your
hands, but gloves are really uncomfortable and the plant is very slippery.
Especially early in the morning, it’s hard to get the plant out. But at
the end of the day my hands really hurt from pulling those weeds out all day
long.”[136]
Julia N., who worked as a teenager in California, said: “I used gloves
but cut the fingers off because otherwise you bruise the fruit and they
don’t pay you. There are kinds without spines and others with strong ones
and they stick you. Your fingerprints have a lot of little cuts from the
spines. And if you forget your gloves then your arms get really
scratched.”[137]
Even with gloves, children cutting greens in Michigan said they still cut
themselves, as recounted above.

Many children said their parents made them wear long pants
and long sleeves but some did not. Pedro E. described working in Georgia in 2008: “The first day I was burned. I was in short sleeves and shorts. I
thought, ‘Thank God I got through it.’”[138]

Repetitive Motion
Injuries

When I did strawberry roots, you have to bend down all
day. It would kill your back.

— Marcos S., age 17, Sylva, North Carolina, August 4,
2009.

Children described working bent over at the waist, on their
knees, with their arms up in the air, or otherwise holding awkward positions,
all day long, five to seven days a week. They often perform prolonged
repetitive motions and lift heavy weights. They told us about pain in their
backs, knees, hands, and feet, even at very young ages. Children whose bodies
are still developing are especially vulnerable to repetitive motion injuries.[139]

Luz A. said that when she picked strawberries in Florida at age nine: “It was hard—you have to be bent over and afterwards your
back hurts. You don’t feel the pain at work but afterwards your back
hurts.[140]
Lucas F., who first worked pulling asparagus at age 12, described the work as
“backbreaking,” sitting on a “rider” with his feet on
two bars, leaning over to pick asparagus between his legs.[141]

Raul L. remembered weeding in Idaho: “You kneel down.
It was really painful sometimes. It’s hard on your back, but I
didn’t feel I needed to go to the doctor because of the pain—it
would go away someday. Sometimes I had a lot of pain in my hands, back, feet.
Sometimes you would get all wet from your waist to your feet. It was really
tough on my feet because I didn’t change socks, and at night sometimes it
was hard to sleep because of the pain in my feet.”[142]

Musculoskeletal disorders are usually caused by “an
accumulation of microtrauma” without sufficient time to recover.[143]
These disorders constitute nearly half of all agricultural occupational illness
and injuries in the United States.[144]
A study of farmworkers in the eastern United States found that farmworkers were
most affected in the neck, shoulders, and upper extremities.[145] A
doctor who cares for farmworkers told us that he was treating 29- and
30-year-olds for knee pain that he attributed to their starting farmwork at
young ages.[146]
Although treating repetitive motion injuries typically requires rest, as well
as anti-inflammatories, splinting, physical therapy, and rehabilitation,
farmworkers are under pressure to keep working at the same rate and, as noted
below, often lack access to medical care.[147]

Pressure to Work Fast,
Sick, and Injured

I can’t afford to miss any day. Half of my family
depends on the money I earn. My money counts.

—Jose M., age 17, Saline, Michigan, August 24, 2009

It’s hard to say what hurts the
worst,” “My legs hurt, my head hurts from the sun. [Today] I’ve
had 3 bloody noses. I feel dizzy and then my nose is bleeding.

—Walter R., age 17, who had spent the day working in
tobacco, Goldsboro, North Carolina, August 6, 2009

Children routinely told us they felt pressure to work as
fast as possible, with few breaks, and to keep working even when injured or when
sickened by pesticides, heat, tobacco, colds, flu, or other illnesses. “We
can’t get sick because then we can’t work,” said 15-year-old
Mary J.[148]

When paid on piece rate, the faster they work, the more workers
get paid.[149]
When paid by the hour, children said they were afraid of falling behind and
getting fired. The pressure children feel to work quickly combined with simply
less work experience can increase the risk of accidents.

“I have to be fast,” explained a 17-year-old
tractor driver. “Bring [the load] all the way to the barn and then get
[more]. There is pressure there that makes you go faster. If I don’t
hurry, I’m losing boxes.”[150] And Elisabeth S. said
of working during her high school years: “The main thing is not being
left behind because the boss pays attention to you. You help your friends so
they don’t get fired. The whole time you’re living in fear that
you’re going to get fired. . . . It was like a race all the time.”[151]

A 15-year-old girl told us: “I get sick and throw up a
lot in Michigan. My stomach and my head hurt. It’s because of the sun.
When I’m picking I feel sick. . . . If my dad sees I’m really sick
he makes me come home and rest. But then he gets really behind because
we’re a lot of help to him. So if I leave it’s a lot of work. I feel
down because I know my dad is going to have to work even harder.”[152]

Jose M., whose accident while being transported to the
fields is described above, told us that he and his injured family members
nevertheless returned to work the following day: “The next day we were
out in the field. It’s an unexplainable feeling. You have to try not to
miss any day.”[153]

Pesticide Exposure

Here there are a lot of chemicals in the field. . . .
You can smell them. [Recently] the plane sprayed, sprayed the cotton. . . . I felt
dizzy. I covered my face and kept working. No one told us to get out of the
field.

—18-year-old Hector H., who worked from age 8 or 9
and works alongside children, Plainview, Texas, July 20, 2009

Exposure to pesticides is a serious risk for all farmworkers
and even more so for children. Most children we interviewed said they had had
contact with pesticides, many through pesticides being sprayed in fields next
to them and blown by the wind, and through contact with residue, sometimes
still wet. Some children reported being sprayed directly. Almost none of the
children said they had received training on pesticide safety.

As discussed in more detail below, children under age 16 are
not legally allowed to handle or apply pesticides classified as category I or
II of toxicity but may handle less toxic pesticides. Regulations prohibit the
spraying of pesticides when any unprotected worker is in the field or may be
exposed through drift, and require workers to be trained in pesticide safety
but make no special consideration for children.

Children’s exposure to pesticides

Pesticides widely used in agriculture include insecticides,
herbicides, fungicides, fumigants, nematicides, rodenticides, and plant growth
indicators.[154]
The most widely used insecticides are neurotoxins.[155]
Pesticides vary in toxicity and enter the body primarily through absorption
through the skin, although they can also be ingested or inhaled.[156]

Although everyone who works on a nonorganic farm is exposed
to pesticides, the degree of exposure depends on the farm’s safety and
hygiene practices: exposure includes both the amount of pesticides with which
farmworkers come into contact as well as the dose that actually enters their
bodies, which is affected by the use of protective equipment and clothing,
washing, and other factors.[157]
Relatively little research on farmworkers’ pesticide exposure has been
conducted anywhere in the United States and even less so on working children.[158]

Andrea C. in Michigan said that on the farm where she works,
pesticides are sprayed from a tractor: “Sometimes we’re passing by
and they’ll spray anyways.”[159] Sam B. in Texas told us he was sprayed from an airplane the previous year.[160]
A former child farmworker in North Carolina who now educates workers about
pesticides told us that she had personally seen tobacco workers being sprayed
with pesticides: “People don’t leave. . . . People say, ‘We
can leave but we don’t want to because we’re afraid the patron
[boss] will fire us.’ They stay there because they’re afraid of
their patron.”[161]

More common than direct spraying was exposure when the wind
or run-off spread pesticides to nearby areas, known as “drift.”
“They sprayed the field next to us yesterday,” said Andrés
F. in North Carolina. “My head hurt. I could smell it, it blew. We kept
working. Many people say this can, can hurt you. I’m a little, a little
worried about it. Sometimes I put on gloves. When I don’t use gloves, it
feels irritated.”[162]

Noemi J. in North Carolina told us she did not like working
tobacco because of pesticides: “Sometimes you’re in one field and
you see people in the next field spraying. It gives me headaches. I’m
allergic. I think, ‘You could have at least waited until we
left!’”[163]
And Elias N. in Texas said: “A few days ago they sprayed the fields in
the front. [The plane] passed by and we were starting to get out, but it just
passed one time so we kept on. I got a headache. I could hardly hit the weeds
but I kept on. It was about a quarter mile away. The wind was going to us and I
could smell it and got a headache. It was in the wind.”[164]

Most children described seeing residue on plants while
working in the field. Some children described being kept out of the fields
after pesticide application; others said they worked while the fields were
still wet with chemicals. The account of a boy in Michigan is typical:
“Countless times we’ve been in the fields when they’re still
wet [with pesticides]. Also, the boss says take the day off because it’s
too wet.”[165]
Even if workers are kept out of the area for the legally required time period,
known as the restricted-entry interval (REI), pesticides are still present in
the fields at lower levels.[166]

Children of farmworkers, in addition to any occupational
exposure, are also exposed to pesticides brought home on parents’ bodies,
that drift during and after nearby applications, in farmworker housing,
prenatally, and through breastfeeding.[167] For example,
Human Rights Watch interviewed a 17-year-old girl five months pregnant who was
alternating daily between working in tomato fields and taking care of children.[168]

The impact of pesticide exposure on children

Children are uniquely vulnerable to chemicals and may absorb
pesticides more easily than adults because they have a higher skin surface area
to weight ratio, faster metabolisms, and ongoing development.[169] Direct
spraying is not necessary to poison a child; contact with treated surfaces can
provide enough exposure.[170]

Exposure to pesticides has both immediate and long-term
effects. Small doses can produce rash, dizziness, nausea and vomiting,
headaches, muscle aches, and burning eyes.[171] Large doses can
cause loss of consciousness, coma, and death; exposure can also cause
spontaneous abortion and birth deformities.[172] The Environmental
Protection Agency estimates that 10,000-20,000 physician-diagnosed
pesticide poisonings occur each year among US agricultural workers.[173]
This number represents only a small fraction of actual pesticide poisonings as
many cases are never reported.[174]
Although exact numbers of poisoned children are not available, research
indicates that children working in agriculture have far greater incidence rates
of acute occupational pesticide-related illnesses than children working in
other jobs.[175]

The long-term effect of pesticide exposure is not well
documented, particularly at low levels. However, it is associated with chronic
health problems such as cancer, neurologic problems, hormonal and reproductive
health problems, and infertility.[176]
According to Dr. Thomas Arcury, director of the Center for Worker Health at
Wake Forest University School of Medicine, “The accumulated knowledge
from animal studies and ecological studies all indicate that long-term low
level exposure is a problem and that we need to do a better job of protecting
people from pesticides.”[177]Subclinical long-term health effects that may not be readily diagnosed
include memory loss and, in children, retarded neurobehavioral development.[178]

Many children we spoke with described symptoms consistent
with pesticide poisoning, although some did not realize it at the time. Raul
L., who worked as a child in Idaho, told us: “They have the canal with
water at the end of the field and they put the chemicals in the water and they
get these pipes and pipe water into the fields for corn, sugar beets. . . . Our
feet would get all big with mud. So when we would go to eat, we’d go and
wash our feet with our hands [in the canals] and then in the afternoon
I’d get the rash. . . . I would get a lot of itchiness. My feet would get
red, rashy. At that time I didn’t know about types of chemicals—no
one told us.”[179]

Julia N., who later trained farmworkers on pesticide safety,
described her experience working as a child in California: “One time I
took off my bandana and gloves and experienced the symptoms of pesticides. . .
I had an itchy face, blurry eyes, I got very dizzy.” Julia said that she
did not associate her symptoms with pesticide exposure until she was trained
for her current job. “I feel so bad that I didn’t know and that so
many people don’t know that if they take off a glove that could expose
them to pesticides and they’ll have so many problems, like cancer,”
she told us. “I think about this, that I [got exposed and my mom did] and
I’m so afraid that one day she’s going to get sick or something
will happen to her from pesticides.”[180]

Luz A. told us that when she picked blueberries every year
in Michigan: “I got sick because when I was in the fields, I took in the
chemicals they put on the plants. . . . My stomach was always heaving. Every
single day. I was really sick. . . . I think [what made me sick] was the
pesticides they put on the plants. The smell of it, and on the blueberries you
could see that they have something on them. You could see it all around, and
you were breathing it. I’d still be out there all sick because I had to
help my mom because we didn’t have that much money.”[181]

Pesticide
training and protective gear

[Pesticides] are there but I don’t know about
them.

— Nelson I., age 17, Plainview, Texas, July 20, 2009

They don’t tell us anything.

— Noemi J., age 16, responding to a question about
pesticide training, Goldsboro, North Carolina, August 6, 2009

Most children Human Rights Watch interviewed said they had
never received training on pesticide safety and took few precautions.[182]
Some children who said they had not received formal training still described
good practices such as washing their work clothes daily, showering right after
work, and wearing long pants and sleeves.

For example, 14-year-old Alejandro P. said he worked in
“short sleeves, jeans, sneakers and gloves so my hands don’t get
dirty.”[183]
As noted above, Human Rights Watch saw children working barefoot and without
gloves, and a health outreach worker said, “We talk with people who go to
work barefoot or with no shirt.”[184] According to
experts on farmworkers and pesticides: “In most fieldwork situations, the
appropriate pesticide PPE [personal protective equipment] for farmworkers is
work clothing that covers the head, body, arms, legs, and feet; that is a hat,
a long-sleeve shirt that is closed around the neck, long pants, socks, and
closed shoes.”[185]
A 2003 study found that of the studied cases of pesticide-related illness in
which relevant information was available, only 19 percent of children who were
employed in agriculture had used protective equipment (9 of 48) and only 25
percent of children who had directly handled pesticides had used personal
protective equipment.[186]

Research in several states, including North Carolina and Texas, has found that from about one-quarter to one-half of workers surveyed have received
no pesticide safety training.[187]
Sam B., who said he trained other workers, was unaware that regulations
prohibit any unprotected worker from being in a field when pesticides are
applied: “Sometimes the airplane will be spraying pesticides around. We
have to ask the crew leader if they are poisonous or not. One time last year an
airplane passed over and sprayed us, and we didn’t know if it was
poisonous or not.”[188]
Alejandro P. told us, “I don’t know if there are pesticides or
not.”[189]

In contrast, children in several areas of Michigan said
their employers had shown them a pesticide training video, and a farm operator
pointed out the video in Spanish and in English on pesticide training that he
said he shows to his workers. Mauricio V. said that the second year he worked
in Idaho his crew leader showed a pesticide video after nearby workers were
poisoned:

An onion field was sprayed with a certain pesticide. It was
still visible and smelled and the workers were told to go back to work, and
they didn’t want to because they could see the plants were white. Some
didn’t, others did because they needed to work. Within an hour some were
coughing up blood. . . .

After that the crew leader showed us a pesticide video but
before that none of us had ever seen one. It was basic safety: don’t get
the pesticides on you, don’t get water from irrigation canals. . . . It
was actually pretty good. It’s just a kind of evil that the reason we
were watching it was because that already happened.[190]

Pesticide training for child workers is especially important
because, as one study stated, “Young people are generally less
experienced and assertivethan adults, and thus they may not
question assignments thatplace them at risk for pesticide
exposure.”[191]

Several agencies are working to improve pesticide safety
training for farmworkers. For example, the US Environmental Protection Agency
(EPA) has developed extensive training for state pesticide safety inspectors
and for workers, including in multiple languages and in pictorial guides. But
“[w]hether or not it’s being used as it should be is a different
question,” staff acknowledged.[192] The Association
of Farmworker Opportunities Programs (AFOP) also conducts pesticide safety
programs for farmworkers under grants from the EPA and AmeriCorps in 24 states.[193]

Training alone, however, will not address the many factors
outside of workers’ control, such as growers who force workers into
fields with fresh residue or who fail to provide sanitation equipment that can
decrease the dose absorbed. “What does it matter if they wear long
sleeves, bandanas if they have to go back into the field right after it’s
been sprayed?” noted a North Carolina health outreach worker.[194]
Similarly, Carol Dansereau, of the Seattle-based Farm Worker Pesticide Project,
stated: “a lot of attention has gone into ‘educating’ farm
worker families about ‘hygiene’ to reduce exposures. While it
certainly is important to let people know about things one can do to try to
reduce exposures, it is appalling that this is the emphasis, to the exclusion
of ending the source of the problem . . . nearby applications of highly toxic
chemicals.”[195]
Seventeen-year-old Andrea C. also pointed out that while she “learned a
lot of things” from the video, “It’s dumb, they make us see
it but they don’t enforce it. Like restrooms. We have portables but not
the water it takes to wash, soap, towels. The first day they did the soap and
filled the towels. Now we want soap and towels. You tell them and they say,
‘So?’ They don’t care.”[196] As
noted above, Andrea also told us that she had been sprayed with pesticides from
a passing tractor. Mauricio V., a former child worker, commented on the power
imbalance that resulted in some workers returning to the Idaho field when
ordered to do so: “It was so terrible to hear about it because when it
comes down to it you really need to work. You’ll work, you’ll
work.”[197]

Extreme Temperatures:
Heat and Cold

Children work in extreme heat and extreme cold. In some
climates the day starts cold and wet, then turns unbearably hot. “When
you wake up it’s really cold,” said James A., who works in Michigan in the summer. “The plants hurt your hands because it’s so cold. Your
hands get numb.[198]
One mother with working children described picking apples in Michigan in
waist-high snow.[199]

In contrast, temperatures in the Texas panhandle can reach
well over 100 degrees Fahrenheit in the summer, and children spoke of longing
for jobs in air conditioning. Elias N. said that when he’s working:
“I think of the sun, why it’s so hot. How I want to go home from
this field.… [I]t’s the hot air and the sun is beating you up. . .
. [Bad days are the] real hot ones, the field is full of weeds, you can’t
even take a step. When you’re surrounded by corn, there’s no
air.”[200]
Elisabeth S., who worked in Washington as a teenager, told us: “It was so
hot that I didn’t want to touch my clothes.”[201]

Working long hours in high temperatures places children at
risk of heat stroke and dehydration, particularly if there is not enough
drinking water and they are wearing extra clothes to protect them from sunburn
and pesticide exposure. “It’s just really hot and the water gets
hot. You get really, really thirsty,” Marta V., age 13, said.[202]
Sam B. told us: “The first year I worked, the second week, I got
dehydrated. My dad had to bring me water. Sometimes you feel dizzy but
you’ll come back. . . . You get all dehydrated and you want to faint but
you need the money. Sometimes I think, why am I here? I can get a better job.
But it’s not true. . . . I’ve seen women, guys get dehydrated
quick. Faint. They’ll just give up like that.”[203]

Heat illnesses can lead to brain damage and death. From 1992
to 2006, 68 crop workers were formally recorded as having died from exposure to
environmental heat, a rate 20 times that of all US civilian workers.[204]
Children are significantly more susceptible to heat stress than adults.[205]

The deadliness of heat illness and the difficulty in
treating a worker once the illness has progressed to a critical stage is well
demonstrated by the death of Maria Isabel Jiménez. On May 13, 2008, 17-year-old
Jiménez collapsed after working for nine hours straight in the heat. By
the time she reached the hospital, her core body temperature exceeded 108
degrees and she died two days later.[206] The autopsy
report gave “Heat Stroke/Sun Stroke due to Occupational Environmental
Exposure” as the cause of death. The state of California fined the labor
contractor more than $250,000 and revoked her license; in 2009, the contractor
and Jiménez’s supervisor were charged with involuntary
manslaughter for failing to provide Jiménez with reasonable access to
potable water, shade, heat illness training, and prompt medical attention.[207]

Sanitation

Many children said that their employers did not provide
drinking water, handwashing facilities, or toilets.[208]
As noted below, the Occupational Safety and Health Act requires that
agricultural employers with more than 10 employees provide drinking water and
toilet and handwashing facilities for farmworkers while they are working.

Access to drinking water is critical to preventing heat
injury: workers may need one half to one quart of water per hour as the
temperature increases from 80 to 90⁰F.[209]
Girls and women may also be at risk of urinary tract infections.[210]
Strikingly, the mother of two teenage children hoeing cotton with no toilets or
provided drinking water told us, “We don’t go to the bathroom
because we sweat.”[211]
Frequent handwashing, especially before eating and using the toilet, is
critical for reducing the dose of pesticides entering the body following
exposure. The absence of field toilets may also increase the risk of gastrointestinal
disorders.[212]

Drinking water

I have never worked where we had water. In my time
we’ve always had to carry our own.

—Mother of 10- and 11-year-old working children, Plainview, Texas, July 20, 2009

Many children said they had to bring their own drinking
water, buy it in the fields, or do without. A 15-year-old girl told us that in Michigan: “You take your own water. If you run out they allow you to go home and get
some.” In Florida, she said, they “sell it to you. Water is
$1.”[213]
Elisabeth S., who worked with a team of teenagers in Washington State, explained: “If we ran out [of water] we ran out. They [employers] didn’t
fill it up. Occasionally if people complained they would fill it, but because
we were all kids we would just stay quiet. In Spanish culture we’re
taught that whatever the authority says, goes. If there’s no water, well,
they know, so we’re not going to say anything.”[214]

Some children in Texas and Michigan said that they not only
had to bring their own water, the tap water in the camps or their communities
was so poor they had to buy the water they brought. For example, a 14-year-old
girl living in migrant housing in Texas told us: “We bring our own water.
We buy our own water and fill it [the cooler] up.”[215]
A 10-year-old boy said that early each morning before work, his chore is to buy
water “from the machine at Lowe’s beside the house.”[216]

Toilets and handwashing facilities

You don’t wash your hands to eat. You just take
off your gloves. They had a weird smell. . . . I don’t know anyone who
washed their hands. There was no place to.

— Elisabeth S., age 19, who worked in Washington State
while in high school, August 3, 2009

Many workers we spoke with said there were no toilets or
handwashing facilities in the fields, although this varied by location and
crop. For example, children hoeing cotton in the Texas panhandle said they
almost never had these facilities provided. “There’s no place to
wash hands,” a 14-year-old hoeing cotton in Texas said. “We bring
tap water and wash our hands.” When asked if there were portable toilets,
she responded, “No, only during pumpkin season in October.”[217]
A mother who took her children to hoe cotton said she wished for portable
toilets. Her 10-year-old son, she said, “had diarrhea one day behind the
wheel [of the car] and we forgot toilet paper. He was trying to hide behind the
wheel of the car.”[218]

In contrast some children in Michigan said they had toilets,
and Human Rights Watch saw some in the fields, although not necessarily at the
distances or conditions required by regulation.[219] In
some studies farmers have reported it “difficult to move toilet and
washing facilities to all of the fields where they employ workers,” that
“when they do provide sanitation facilities, such as field toilets and
washing stations, workers do not use them,” and that they “consider
this requirement to be burdensome.”[220]

Green Tobacco Sickness

Acute tobacco poisoning, known as “green tobacco
sickness,” is an additional risk to working in tobacco, and children are
especially vulnerable. The poisoning occurs when workers absorb tobacco through
the skin as they come into contact with the leaves; wet leaves increase the
risk of poisoning as nicotine dissolves in the water on the leaf’s
surface. Physical exercise and high ambient temperatures can increase
absorption of nicotine as blood is shunted to the skin to help lower body
temperature.[221]
Symptoms include nausea, vomiting, headaches, muscle weakness, dizziness,
abdominal pain, and diarrhea, as well as shortness of breath, and occasional
fluctuations in blood pressure or heart rate.[222]
According to a recent study, “on a humid day, especially after a recent
rain, the average field worker may be exposed to as much as 600 mL of
dew,” which would contain roughly the nicotine of 36 average cigarettes.[223]

“Topping” and harvesting, two types of tobacco
work the children Human Rights Watch interviewed conducted, place workers in
constant contact with tobacco leaves and at particular risk of green tobacco
sickness.[224]
Human Rights Watch interviewed 12 children working in tobacco in eastern North Carolina.

Children are especially vulnerable to green tobacco sickness
compared with adults. Their bodies are smaller in size relative to the dose of
nicotine they absorb, they typically lack tolerance to nicotine, and may be
less well-informed about the risks, especially from rain or dew, because the
danger is from the plant itself, not an obvious external substance.[225]

Protective clothing such as rain gear and water-tight gloves
can protect workers from exposure but also increase the risk of heat exhaustion
and dehydration;[226]
none of the children Human Rights Watch interviewed mentioned wearing
protective clothing.

Access to Health Care

Farmworkers generally have poor access to health care, and
only 20 percent of migrant and seasonal farmworkers reported in 2000 using any healthcare
services in the preceding two years.[227] A study of
migrant families in eastern North Carolina, published in 2004, found that for
over half of the children sampled, the child’s caretaker reported a time
in the past year when the caretaker felt the child needed medical care but the
child did not receive it.[228]

Cost is a significant problem. Farmworkers’ incomes
place them near or below poverty, many are not eligible for Medicaid, and few
have health insurance: 85 percent of migrant and seasonal farmworkers, and nine
out of ten children in farmworker families, were uninsured in 2000.[229]
Some simply cannot afford the lost wages of hours spent waiting for care or to
apply for benefits; some may lose their jobs if they miss a day of work.
Farmworkers are also not covered by workers’ compensation laws in many
states.[230]

There are approximately 160 federally funded migrant health
clinics as well as community clinics that receive federal funding to care for
uninsured and under-insured migrant farmworkers and their families.[231]
While many of these provide excellent care, they are not sufficient to cover
all farmworkers’ needs. Language and distance from medical facilities are
also significant barriers.[232]
Where workers do receive care, health providers may have limited training in
diagnosing occupational health problems, including pesticide exposure, and may
face cultural barriers in providing treatment.[233]
The Migrant Clinicians Network has programs to promote the integration of
occupational and environmental medicine into primary care.[234]

Some children told us their employers had paid for their
emergency care for a minor workplace injury but strictly on an ad hoc basis.
More common were descriptions of problems persisting for years without formal
medical treatment. “When they’re really sick, unless they’re
in pain,” they are not going to go to the doctor, a health worker told
us.[235]

The new health care reform law recently enacted by the US
Congress excludes undocumented workers from coverage. As noted earlier, it is
estimated that about half of all farmworkers are undocumented.

Sexual Harassment and
Violence

From California, where the fields were
called “field de calzon” (or “field of panties”) because so many supervisors raped
women there, to Florida, where female farm workers call them “The Green
Motel,” and throughout the country, we have found women working in
agriculture are often particularly vulnerable to sexual harassment.

All forms of workplace exploitation take their toll on
victims, whether it is economic or sexual. One major difference that I have
seen is that when you are raped at work it is not the same as not being paid;
you are not just going to get another job and move on with your life like when
you’re not paid. When you’re raped, it impacts the rest of your
life. . . .

Farmworker victims are getting pregnant, they are
getting STIs [sexually transmitted infections] from perpetrators, and they are
suffering trauma from rape. It affects them and their families. Some victims
I’ve represented have said they could no longer interact with their
family in the same way afterward because they felt ashamed and embarrassed. The
harm caused by sexual violence goes to the core of the person’s being.
It’s a health issue, a safety issue, a civil rights issue.

Farmworker women and girls are exceptionally vulnerable to
sexual exploitation and violence by co-workers, crew leaders, labor
contractors, and growers. This violence ranges from inappropriate or
threatening comments to groping, sexual assault, and rape. In a recent survey
of Latino immigrants in five states, 77 percent of women said that sexual
harassment was a major workplace problem.[238] Similarly,
farmworkers and advocates in Fresno, California, told EEOC staff “that
hundreds, if not thousands, of women had to have sex with supervisors to get or
keep jobs and/or put up with a constant barrage of grabbing and touching and
propositions for sex by supervisors.”[239]

Maria M. from Idaho, whose story is recounted above,
described her experience of being almost the only girl harvesting zucchini when
she was in high school:

It was difficult . . . when I was placed next to men.
I wore really loose clothing. I never wore tight clothing because that would be
a big mistake. There were times when you were working down the row and
there’s a guy next to you asking your name. They never ask how old you
are because they don’t want to know that. . . . You had to be rude to a
guy even though they’re just asking your name because it could turn into
something worse. . . . You had to strategize how you were going to answer
questions to prevent them from talking to you.

I remember one crew leader, he would stand behind girls and
look at them. It wasn’t ok for him to do that, but other guys laughed
because he was a crew leader. He was the worst crew leader ever. . . .

Women know you don’t wear a t-shirt to work. . . .
When you’re working in the fields you can’t avoid being harassed by
guys because of what you’re wearing.[240]

Another young woman said that when she worked when she was
15 and 16 years old in Washington State, girls tried to stay together in groups
to avoid harassment, especially after the lunch break when men would get high
on drugs.[241]

In 2005, Olivia Tamayo became the first female farmworker to
successfully challenge her employer in federal court for sexual harassment.[242]
Tamayo testified that her supervisor, who carried a gun and a knife, raped her
and threatened to kill her and her husband if she told anyone.[243]
She reported the assault and threats to her employer in 1999, and a deputy
sheriff interviewed her but did not find her allegations credible.[244]The EEOC sued on Tamayo’s behalf and charged that Harris Farms allowed her to work isolated in the fields
and to endure co-worker harassment until, in March 2001, she felt compelled to
quit her job, her primary employment for more than 15 years. The jury found
Harris Farms liable for sexual harassment, retaliation, and the constructive
termination of Tamayo.[245]In January 2005, a jury awarded Tamayo a nearly $1 million verdict
against Harris Farms, one of California’s largest agricultural
businesses.[246]

The prevalence of sexual violence is always difficult to
measure accurately; the isolation and other vulnerabilities of farmworker girls
and women make it more so in this context. According to William Tamayo, an EEOC
regional attorney whose office has brought numerous sexual harassment cases
(and no relation to Olivia Tamayo): “This happens behind closed doors.
There are probably scores of women and girls who are being raped in the fields
every day but don’t come forward. They’re scared. . . . My view is
that we’re just scratching the surface here.”[247]

Geographic, linguistic, and cultural isolation combined with
poverty and a desperate need for work, poor housing, vulnerability to
deportation if undocumented, and the inability to seek protection create a
perfect climate for sexual harassment and violence to flourish on farms.
Farmworkers typically work in less populated, more isolated rural areas; the
majority of workers, supervisors, and employers are male. Victims may not speak
English or know the abuse is illegal; they simply endure sexual harassment as
part of the job. “People don’t know their rights. Predators are
rarely punished,” said EEOC attorney Tamayo.[248]

The power differential between growers, contractors,
supervisors, and workers is enormous. Workers may fear that they and their
family members will be fired or face violence if they do report abuse. Maria M.
told us: “it’s something that girls have to live with. I’m
sure a lot of people wonder why a girl would go into the field in that
situation, but you have to accept it’s going to happen and work is
work.”[249]
If the employer provides housing, being fired may mean becoming homeless. In
addition, being fired could cause the victim or her family members to be
blacklisted from agricultural employment in the area where the incident
occurred or elsewhere because the worker is coined a trouble maker. As a
result, the victim and even her family members can be denied future employment
opportunities.[250]

Girls may be especially targeted and may be less likely to
challenge their abusers than adults. “I never saw [sexual harassment] as
an issue because I was used to it,” the young woman from Idaho explained. “Sometimes I would get frustrated, but it was something I knew was
going to happen so I didn’t think it was a big deal until I learned it
shouldn’t happen.”[251]
Mónica Ramírez, founder and director of Esperanza: The Immigrant
Women’s Legal Initiative of the Southern Poverty Law Center, who
represents farmworker women and girls in cases involving sexual violence, said:
“Children are always more vulnerable because they don’t know they
have protections or how to protect themselves. Perpetrators take advantage of
their youth, inexperience as employees, and lack of knowledge about their
rights. Sometimes they make threats against the victims’ parents or other
family members. Unaccompanied minors are also especially vulnerable.”[252]
According to EEOC attorney Tamayo: “The imbalance of power is so
great—kids don’t know their rights and they’re really scared.
It’s usually 30- to 40-something’s who are propositioning or
grabbing them—16-year-old girls.”[253]

Employers may ignore harassment or may themselves engage in
abuse. “In cases I’ve handled,” Ramírez said,
“it’s been supervisors and company owners who have committed the
harassment. I am aware that some growers and supervisors say that they are
aware of the problem but that it is not happening on their farm. They
can’t say it’s not happening on their watch. It’s people in
power who are perpetrating this violence.”[254]
In other instances, the employer turns a blind eye or never receives the
complaint. William Tamayo explained: “English-speaking owners are very
dependent on labor contractors or foremen who speak Spanish. . . . Predators
have so much power. They are the link to the employer. They are the lifeline.
They are insulated. The employers are so dependent on these guys and so when
problems are raised they don’t want to hear about it. They may think that
the chances are rare that they will ever be prosecuted.”[255]

Women and girls have limited or no recourse for abuse. Local
law enforcement may be unavailable or unreceptive to farmworker women’s
and girls’ complaints. Where local and state police have signed so-called
287(g) agreements with Immigration and Customs Enforcement (ICE) allowing them
to enforce federal immigration law, undocumented victims may, in effect, have
no legal protection from crime because they fear complaining to the police will
lead to their deportation (see below).

Aside from lacking information about their rights,
farmworker victims often do not know about the community resources available to
help them in the face of sexual harassment or violence. Social service
providers may be far away from where the farmworker community members live or
work. Such services may also only be available in English. Victims may fear
that their partners and families will blame them for provoking abuse or for
being perceived as causing problems. Thus, these victims may not tell even
those closest to them. A paralegal who works with farmworkers said: “The
women don’t want to talk about it. They don’t even tell their
husbands. Because their husbands are going to blame them. So the woman says,
‘I don’t want anyone to know.’”[256]

One government agency that has specifically targeted this
issue is the US Equal Employment Opportunity Commission (EEOC), which since
1996 has filed more than 20 cases of sexual harassment, retaliation, and
sex-based discrimination on behalf of women agricultural workers, mostly out of
its San Francisco office.[257]
At the time of writing, only the Harris Farms case, described above, had
resulted in a jury verdict, but at least 18 have resulted in settlements or
consent decrees.

As an example of a recent case involving a teenager, in a
lawsuit filed in January 2010 against Giumarra Vineyards,the EEOC
alleged that a male co-worker subjected a teenage farmworker to “sexual
advances, sexually inappropriate touching, and abusive and offensive sexual
comments about the male sex organ,” that farmworkers who witnessed the
harassment complained to Giumarra Vineyards, and that one day after the
complaint, Giumarra Vineyards summarily discharged the girl and the farmworkers
who complained in retaliation.[258]
This case and others were still pending at the time of writing.

Several non-governmental organizations have also taken up
the issue of sexual harassment and violence against farmworkers. These include
Esperanza: The Immigrant Women’s Legal Initiative of the Southern Poverty
Law Center (SPLC), the Agricultural Worker Health Project in conjunction with
California Rural Legal Assistance Foundation and California Rural Legal
Assistance, Inc., and the non-profit organization Lideres Campesinas. In
addition, many organizations throughout the United States and abroad have
partnered with SPLC on its Bandana Project Campaign.[259]

VIII. Vulnerability of
Child Workers Due to Immigration Status

Labor and workplace violations—including wage
exploitation, pressure to do dangerous work, and sexual abuse—are risks
for all child farmworkers. However, for undocumented immigrant child
farmworkers (who lack permission to work) and lawfully present or US citizen children
with undocumented parents, the threat of deportation by US Immigration and
Customs and Enforcement (ICE) exacerbates an already exploitative and degrading
workplace.

Over half—53 percent—of all (adult and child)
crop workers lacked work authorization in 2005-2006, according to the National
Agricultural Workers Survey (NAWS).[260]
By comparison, 2006 data from the US Census Bureau indicate that only about 40
percent of all farmworkers (crops and livestock) were foreign born and lack US
citizenship, and do not indicate how many farmworkers without citizenship were
still working lawfully.[261]
Based on these numbers, Human Rights Watch estimates that it is likely that the
majority of child farmworkers are documented, given that many farmworker
parents without US citizenship would have had children born in the US, making
them US citizens.[262]

In some states visited by Human Rights Watch, service
providers perceived a trend towards employing undocumented youth—some
even as young as 12—who were not accompanied by family members. Gregory
Schell, a public interest lawyer, said that in Florida, “Most of the
underage workers we see are unaccompanied, and tend to be older—15 or
more.”[263]
Advocates working directly with farmworkers also described the growing presence
of indigenous children from Mexico and Central America for whom Spanish was not
a native language. “We’ve seen more and more younger
farmworkers,” said Carol Brooke, migrant worker attorney with the North Carolina Justice Center. “Sixteen, seventeen years old. Typically in male
crews, maybe with a relative. Mostly undocumented, often speaking indigenous
languages, although they also speak Spanish.”[264] For
this report, Human Rights Watch interviewed child farmworkers who were US
citizens, who were green card holders with permission to work in the US, and
who were undocumented.

While this report’s main focus is on improving child
labor protections and health and safety protections for all child farmworkers,
the ways in which immigration law—most tangibly felt as the threat of
deportation—exacerbate problems for children in agriculture cannot be
ignored. The vulnerability of immigrant workers to exploitation creates
dangerous and unfair work conditions for all workers. Some employers’
willingness to take advantage of immigrants who are too afraid to complain
hurts all workers in the fields, including the hundreds of thousands of US
citizens who work alongside immigrant workers.

Undocumented child farmworkers, or children who are working
together with undocumented parents, live in fear of at least two scenarios. One
is that their employers will turn them or their parents over to immigration
authorities, and that they or their parents will be deported. This means that
children are terrified of complaining about abusive conditions in the fields,
and any steps they might take towards vindicating their rights can be thwarted
by an employer who threatens to call ICE. The second scenario that children
fear is that their employers will be subject to a raid by immigration
authorities.[265]

Recognizing that employers have an almost unfettered ability
to exploit undocumented workers, ICE (and its predecessor agency, INS) and the
US Department of Labor (DOL) have entered into a Memorandum of Understanding
(MOU) to try to de-link immigration and labor law enforcement.[266]
First established in 1998, this DOL MOU states that the two agencies must avoid
situations where their co-involvement in a particular labor setting will have
the purpose or effect of placing raids on undocumented workers above labor law
enforcement, because the Department of Labor has recognized that immigrant
workers will be reluctant to bring complaints if employers are able to call in
ICE under any circumstance.[267]
Since 1996, the INS (now ICE) has had in place internal guidance to its staff
on how to avoid immigration enforcement involvement in labor disputes.[268]
Despite the existence of these tools, perhaps partly because they are not
consistently followed by ICE, undocumented workers continue to live in fear of
exercising their rights as workers. As one service provider said,
“Undocumented victims or victims whose family members or other people in
their social network are undocumented won’t report because they are
afraid that they or someone they love will be deported.”[269]

Undocumented farmworkers live in fear not only of ICE, but
increasingly of their local police officers as well. This is due to so-called
“287(g) agreements” under which local or state police enter into an
agreement with ICE to enforce federal immigration law.[270]
As of April 2010, ICE reported having enrolled 71 agencies in 26 states and
trained 1,120 officers under the program.[271]
In the course of our research for this report, Human Rights Watch heard from
service providers about local police in North Carolina setting up roadblocks to
check people’s immigration status, including near a Spanish-language day
care.

The involvement of local police in enforcing federal immigration
laws, which often is accompanied by intense racial profiling, has a chilling
effect on all immigrant farmworkers’ willingness to report workplace
abuses.[272]
“The 287(g) agreements definitely affect people’s willingness to
report sexual violence,” one service provider told Human Rights Watch. “In
some cases when people do file a report, law enforcement officials question the
credibility of victims because of their immigration status, language, and
nationality.”[273]
According to the Southern Poverty Law Center, there are several cases in which
police have turned female victims of crimes over to ICE and they have been
deported.[274]

Even though undocumented workers have violated US
immigration law, the fact of their employment in the United States means that
they are protected by, and their employers must follow, minimum wage, child
labor, and health and safety rules.[275]
In addition, human rights law is clear that both undocumented and documented
workers must benefit from protection of their basic rights as workers.[276]

Despite these protections in US and human rights law, the
reality of immigration law enforcement in the United States and workers’
unwillingness to draw attention to themselves mean that the fear of deportation
often trumps all else. “You can seize on child labor or alleged slavery
but these things only exist as extreme examples of th[e] type of extreme
lawlessness [that all farmworkers live under] . . . . In a world where everyone
is in a precarious employment situation and the system relies on employee
testimony, there’s not good enforcement,” explained Gregory Schell
of Florida Legal Services Migrant Farmworker Justice Project.[277]
A migrant health project director in Michigan told Human Rights Watch: “Even
people who are documented have family members who are undocumented so they are
afraid to speak up.”[278]
Similarly, a nurse at a rural health clinic said: “We hear over and over
again from our patients that they are willing to put up with a lot because they
are undocumented and afraid. One really can’t talk about health if
you’re worried about getting paid. If you can’t afford to buy
food.”[279]

IX. The United
States Government’s Failure to Protect Farmworker Children

Protecting child farmworkers from dangerous and exploitative
work is the responsibility of lawmakers as well as the agencies that implement
the law, including the US Department of Labor and the Environmental Protection
Agency (EPA). By providing children working in agriculture less protection than
all other working children, and by poorly enforcing what protections they do
have, the government is failing in its responsibility to safeguard the health,
education and safety of farmworker children.

Fair Labor Standards
Act

Child labor is first and foremost regulated by the Fair
Labor Standards Act (FLSA), the federal law that sets minimum ages for work,
maximum work-hours per day and week, and minimum hourly wages. The FLSA dates
back to 1938 and reflects a radically different era in the United States, a
time when “agriculture” was synonymous with “family
farm,” and a quarter of all Americans still lived and worked on
farms. Initially, farmworkers were excluded entirely from the law's
protection, and the minimal restrictions on child labor in agriculture were not
added until 1974.

The most glaring deficiency of the FLSA is its disparate
treatment of farmworker and non-farmworker children. Children working
in agricultural occupations receive much less protection than children
working in all other jobs. As put by the General Accounting Office, “children
can legally work in agriculture under conditions that would be illegal in other
work settings.”[280]
For example:

Outside of agriculture, the employment of children younger
than 14 is prohibited.[281]
In agriculture, there is no minimum age at which employers may hire
children to work unlimited hours outside of school, day or night, provided
the work takes place on a small farm with written parental consent.[282]

Outside of agriculture, employment of children ages 12 and
13 is forbidden. In agriculture, any employer, regardless of size, may
hire children ages 12 and 13 to work unlimited hours outside of school,
provided they have written parental consent or work on a farm where a
parent is employed.[283]

Outside of agriculture, the standard minimum age for work
is 16. Children ages 14 and 15 can work in certain limited jobs, such as
cashiers, stocking shelves, or washing cars, in retail or food service
stores, and in gas stations but only for limited hours: up to 40 hours in
a nonschool week; up to 18 hours in a school week; up to 8 hours on a
nonschool day; and up to 3 hours on a school day. In addition, outside of
agriculture, 14- and 15-year olds may not work before 7:00 a.m. or after
7:00 p.m. (9 p.m. in the summer). There are no similar restrictions
protecting children working in agriculture. In agriculture, employers may
hire children ages 14 and 15 to work unlimited hours outside of
school. There is no parental consent requirement.[284]

In nonagricultural occupations, the minimum age for particularly
hazardous work is 18, including for children working in a parent’s
business. In agriculture, employers may require or allow 16 and 17-year
olds to work in particularly hazardous occupations.[285] Children
who work on a farm owned or operated by their parents can do particularly
hazardous work at any age, no matter how young. For example, using a
power-driven circular saw or band saw is allowed for children starting at
age 16 in agriculture, whereas in other industries the minimum age for
using such saws is 18 years.[286]
This disparate treatment is particularly troublesome given agriculture's
position as the most dangerous occupation for working children in the United States.

States have the power to provide stronger protections for
farmworker children than federal law, but most state child labor laws are no
more protective than federal law. Seventeen states do not cover agricultural
employment in their child labor laws at all.[287]

For the last decade, members of the US
Congress have repeatedly introduced draft legislation into both the Senate and
House of Representatives that would eliminate the double-standard in US child
labor laws and apply the same age and hour restrictions to children working in
agriculture that already apply to other industries. However, to date, none of
the bills have ever reached a vote.

As this report goes to press, legislation is
still pending. In September 2009, Representative Lucille Roybal-Allard
of California introduced legislation that would amend the Fair Labor Standards
Act and apply the same age and hour requirements to children working in
agriculture as for children working in other occupations (except
for the existing family-farm provision that excuses from all child labor
requirements parents whose children work on a farm that the parents own or
operate). The Roybal-Allard bill, the Children's Act for Responsible
Employment (CARE) (HR 3564), has three key provisions. First, it would prohibit
the employment of children ages 13 and younger in agriculture, except for those
working on farms owned and operated by their parents. It would allow 14- and
15-year-olds to work only for limited hours, outside of school hours. Second,
it would raise the minimum age for particularly hazardous jobs in agriculture
from 16 to 18. Third, it would increase the maximum amount of civil money
penalties from $11,000 to $15,000, and would for the first time require a
minimum penalty of $500 for each violation. In the case of a violation that
causes serious injury, serious illness, or death, there would be a minimum
penalty of $15,000 and a maximum penalty of $50,000, which maximum could be
doubled where the violation is repeated or willful.[288]

As of April 2010, the bill had more than 80 Congressional
co-sponsors, but no formal action had been taken.

The US Department of Labor is responsible for enforcing the
FLSA, which it does through its Wage and Hour Division. The secretary of labor
can seek redress for child labor violations through injunctive relief, civil
money penalties, and criminal sanction. (Only the secretary of labor—not
individual employees or their parents—can sue an employer for violations
of the FLSA’s child labor provisions.) Many of the employers of children
profiled in this report would not be subject to sanction for child labor
because the children are working legally under US federal law as it applies to
agricultural employment. However, far too many agricultural employers violate
the law without penalty.

The Wage and Hour Division’s enforcement of child
labor laws in agriculture has been extremely weak. In 2009 it found only 36
cases of child labor violations involving 109 children in agriculture, constituting
only 4 percent of all child labor cases that year.[289]
This number is not only astonishingly low, but also reflects a dramatic decline
in overall enforcement of child labor laws from 2001.[290]
By comparison, in 1998, the Department of Labor found 104 cases of child labor
violations in agriculture.[291]

The Wage and Hour Division suffers from too few
investigators, too little attention devoted to child labor, and, of those
resources devoted to child labor, too little focus on agriculture. As a result,
growers have no reason to fear using children illegally.

The division does not dedicate staff to inspect for child
labor exclusively, but instead maintains that all full
investigations—even those made under laws other than the
FLSA—include a child labor component.[292] Thus, according
to Arthur M. Kershner, Jr., youth employment branch chief, inspectors
conducting an investigation of an agricultural employer will always look for
child labor violations, even if the investigation has been triggered by
complaints of other violations.[293]
Yet the low numbers of child labor cases that result from these investigations
call this into question: in 2009, the Wage and Hour Diviaion made 1,379 full
investigations in agriculture but found only child labor violations in less
than 3 percent of those investigations (36 cases, as noted above).[294]
One possible reason the Wage and Hour Division finds so few child labor
violations is that it conducts very few investigations in agriculture that start
out as child labor investigations. In 2007 over 98 percent of investigations of
agricultural employers were started for reasons unrelated to child labor.[295]

Until recently the Wage and Hour Division has not tailored
its investigative techniques to fit the particular work environment and
characteristics of children working in the fields. Many agricultural workers
move from farm to farm and do not stay long in one place; they often work
irregular hours, including very early in the morning and on weekends; they are
frequently unfamiliar with their rights; they often do not speak English (or
even Spanish in the case of indigenous language speakers from Mexico and
Central America); and those who are undocumented tend to be wary of any
government investigators.

These factors highlight how critical it is that the
Department of Labor develop better methods for determining where child labor
violations are likely to occur and investigate child labor proactively without waiting
for workers to make complaints. Unlike issues such as non-payment of wages,
working children or their parents are not going to report child labor.

The Wage and Hour Division’s failure to adequately
enforce child labor laws in agriculture is compounded by its overall failure to
address wage violations against adult workers that contribute to farmworker
poverty and push children to work to contribute to family income. For example,
the US Government Accountability Office (GAO) found in 2009 that the Wage and
Hour Division responds inadequately to complaints of wage fraud and non-payment
of wages, leaving low wage workers vulnerable to wage theft.[296]
The GAO concluded that the division’s system actively discouraged
complaints, for example by directing most calls to voicemail but requiring an
investigator speak with the employee before an investigation can be initiated, by
not returning phone calls, by providing conflicting or misleading information
about how to file a complaint, and by accepting only written complaints at some
offices.[297]
Activists and service providers whom Human Rights Watch interviewed in North
Carolina, for example, told us that both state and federal department of labor
offices are difficult for workers to access, even more so for children. In a
survey by the Southern Poverty Law Center of some 500 Latino immigrants in five
states, published in 2009, about 80 percent said they had no idea how to
contact government enforcement agencies such as the Department of Labor.[298]

Even when violations are found, sanctions
generally are weak and ineffective.[299] The
Wage and Hour Division can assess civil money penalties for child labor
violations. The maximum civil money penalty available for a nonwillful
child labor violation is $11,000 for each employee who experiences a violation,
and $50,000 for each violation that causes death or serious injury of a child,
which may be doubled for repeated or willful violations.[300] The
amount of the penalty must be based on the size of the business and the gravity
of the violation.[301] The amount of civil money penalties ordered for child labor violations
is far too low. For example, in 2008, the average penalty was only $890 per
child illegally employed, which is only 8 percent of the maximum penalty of
$11,000 then in effect.[302] As
another example, according to news reports, in 2009 the division assessed two
blueberry growers only $2,584 for child labor violations after it found
children as young as six years old picking in the growers’ fields.[303]Moreover, these penalty amounts do not represent penalties
actually paid because assessed penalties may be negotiated downwards in
order to resolve cases and avoid litigation.[304]

The “hot goods” provision is another
enforcement tool. The provision prohibits the shipment in interstate commerce
of any goods produced in violation of minimum wage, overtime, or child labor
requirements.[305] It
can be extremely effective, particularly in agriculture, in that it allows the
Wage and Hour Division to seek temporary restraining orders preventing the
movement of tainted goods. This creates great incentives for companies,
growers, and other affected businesses to cooperate with the
division. Such cooperation has included future compliance agreements and
arrangements for ongoing monitoring. Use of the “hot goods”
provision is still an exceptional law enforcement tool: the division invoked
the provision only once in 2008 and once in 2009.[306]

The Wage and Hour Division has recently taken steps to
address some of its basic shortcomings and improve the quality of the
information it collects to litigate cases.[307] In 2009 the
division hired several hundred new inspectors, who were still being trained at
the time of writing, bringing the total number of inspectors to 894 in April
2010.[308]
The division is also providing inspectors with basic technology such as cell
phones, jump drives, and digital video and audio equipment; paying overtime so
that inspectors can work weekends and early mornings; and adding bilingual
staff.[309]
The division says it has begun tracking harvests and plans to strengthen
relations with community organizations so that its inspectors will have
information about where farmworkers are likely to be.[310]
It remained to be seen at the time of writing whether these efforts would
result in overall more vigorous enforcement of protections for child
farmworkers.

Failure to Protect
Children’s Health and Safety

Several sets of laws address hazards for children in
agricultural work. First are the Department of Labor’s hazardous orders,
which apply specifically to children. Second is the federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA), enforced by the US Environmental
Protection Agency. Third is the Occupational Safety and Health Act, enforced by
the Occupational Safety and Health Administration (OSHA) in the Department of
Labor. These latter two laws (and their implementing regulations) affect
workers of all ages.

The Department of Labor’s hazardous orders

Under the FLSA, the Department of Labor is responsible for
determining what jobs are hazardous and therefore prohibited for children under
age 16 working on farms that are not owned or operated by their parents (or for
some tasks, children ages 14 and older who have received special training). The
Department of Labor also determines what jobs are hazardous and thus prohibited
for children under age 18 in all non-agricultural industries. For agriculture, occupations
deemed particularly hazardous for children include operating equipment such as
tractors of over 20 horsepower take-off, corn and cotton pickers, grain
combines, and hay mowers; working in yards, pens, or stalls occupied by a bull,
boar, or stud horse; working from a ladder at a height of over 20 feet; working
inside fruit, forage, or grain storage containers; and handling or applying
agricultural chemicals classified as Category I or II of toxicity.[311]
Children under age 16 may still handle pesticides of lower toxicity, and
children ages 16 and older may work in agriculture without any age-related
restrictions. Notably, a 2003 study of children under age 18 with acute
occupational pesticide-related illnesses found that only a few appeared to
working in violation of these regulations.[312]

In 2002 NIOSH, in a report to the Department of Labor,
recommended amending the hazardous orders for both agricultural and
non-agricultural jobs.[313]
In agriculture, NIOSH recommended, among other things, revising the tractor
exemption for certified 14- and 15-year olds to require rollover protective
structures and seatbelts; lowering the height restrictions on ladders from 20
to 6 feet; and expanding the prohibition on handling certain agricultural
chemicals to “[p]erforming any tasks that would fall under the EPA
definition of ‘pesticide handler.’”[314]
To date, none of the recommendations have been implemented. Although the
Department of Labor has taken steps to implement some of NIOSH’s
recommendations for nonagricultural hazardous orders, initiating changes
to agricultural hazardous orders was not on the department’s regulatory
agenda at the time of writing,[315]
despite the younger ages for hazardous work in agriculture and high rates of
injuries and fatalities compared with other sectors.

Even existing hazardous orders are almost never enforced for
agriculture. In 2009 the Wage and Hour Division cited only two violations of
agricultural hazardous orders in two cases, or 0.14 percent of the 1,432
hazardous occupation violations it found that year.[316]

The Environmental Protection Agency (EPA)

The US Environmental Protection Agency oversees
the registration, distribution, sale, and use of pesticides. The
EPA’s Worker Protection Standard is a federal regulation intended to
“reduce the risks of illness or injury resulting from . . . occupational
exposures to pesticides.”[317]
The Worker Protection Standard forbids employers from requiring or allowing
workers, other than trained pesticide handlers, to enter or remain in areas
being treated with pesticides. It requires employers to notify workers when
areas have been treated by pesticides, either orally, by means of prominently posted
“Danger” signs, or both, depending on the pesticide's labeling
statement. The Worker Protection Standard further requires that workers be
trained in a language they understand on 13 specific items regarding pesticide
safety, pesticide-related illnesses, and emergency responses to pesticide exposure.
The Worker Protection Standard sets no minimum age for mixing or applying
pesticides (although, as noted above, regulations set by the Department of
Labor under the FLSA prohibit children under 16 from handling category I and II
pesticides).

The same regulations that establish the Worker Protection
Standard also set restricted-entry intervals (REIs), the period of time after a
pesticide's application during which workers should not be in the treated areas
without protective equipment.[318] The
REI is listed on the label for each pesticide and, generally ranges from about
12 to 72 hours.[319]
Dry conditions may necessitate a longer REI, particularly among toxicity
category I pesticides, which are the most toxic.[320]
The regulations also restrict the application of pesticides under certain
conditions, such as strong winds.

Despite the greater vulnerability of children to pesticides,
there is no special consideration for them in EPA regulations at all. The
Worker Protection Standard and the REI regulations are formulated with
adults—and only adults—in mind. In the Worker Protection Standard
there is no prohibition on children mixing, handling, or applying
pesticides. Restricted-entry intervals are set using a 154-pound adult
male as a model—they are not adapted for children, pregnant women, or
others who differ from this model. A 2003 study of children with acute
occupational pesticide-related poisoning found that 26 percent of ill children
in agriculture were exposed despite compliance with restricted-entry interval
requirements, suggesting, according to the authors, “that longer
intervals may be requiredto protect youths.”[321]
A process to revise the Worker Protection Standard has been going on for more
than a decade. Although it is possible that revisions may include, for example,
age limits on applying the most toxic pesticides, they will be reopened for
public comment and are, at best, several years from being put into place.

Notably, in December 2009, the EPA announced plans to
strengthen its assessment of pesticide health risks for children—farmworkers
and others—with a strong emphasis on risks for children in the fields.[322]
The proposed risk assessment techniques would include “using
an additional safety/uncertainty factor to protect children, considering
aggregate exposures to pesticides from multiple sources, considering cumulative
effects that may occur from exposure to multiple pesticides with a common
mechanism of toxicity, and reporting potential risks for individuals who had
not been explicitly considered, specifically workers age 12-17 and children
taken into agricultural fields while their parents work.”[323]The period for public comments on the policy paper outlining the
EPA’s plans closed in April 2010 and at the time of writing the EPA was
reviewing the comments received. The worker advocates who submitted comments,
such as the California Rural Legal Assistance Foundation, the Farmworker
Pesticide Project, and the Pesticide Action Network, urged the EPA to set forth
an explicit timeline for the development and application of these more
protective policies, including reliance upon a scientific advisory panel review
and public input. The outcome of the proposed changes remains to be seen.

The Worker Protection Standard and REI regulations are
enforced by the individual states, which often do so poorly.[324] As
noted above, children described to Human Rights Watch being exposed to
pesticides through spraying and drift in violation of the regulations,
re-entering fields before the pesticides had even dried on the plants, and not
being trained on pesticide safety. In western Michigan a farm operator told us
that he posted information about spraying at the farm headquarters.[325]
However, the headquarters were located in a completely different location from
the fields, and workers did not go there on a daily basis. In eastern Michigan a girl told us: “The signs [in the fields] say pesticides only when the
inspector comes. When he’s not here we don’t know. I’ve only
seen these signs once. The inspector rarely comes.”[326]

The EPA’s Office of Pesticide Programs has a grant
relationship with states to implement pesticide programs and could use the
program to push for better enforcement by states. EPA officials in the Office
of Pesticides Programs also told us that they have now clearly defined what an
inspection should include to be meaningful.[327] Some states, such
as California and Washington, have more extensive pesticide safety programs
applicable to farmworkers.

The Occupational Safety and Health Administration
(OSHA)

The Occupational Safety and Health Administration (OSHA) within
the US Department of Labor is the federal agency with primary responsibility
for setting and enforcing standards to promote safe and healthy working
conditions for all workers. OSHA has the power to issue safety and health
regulations, impose civil monetary penalties, and pursue criminal penalties
against employers who have violated the Occupational Safety and Health (OSH)
Act or its regulations. Potentially protective to children working in
agriculture are the agency’s Field Sanitation Standard, which requires
agricultural employers to provide drinking water, handwashing facilities, and
toilets;[328]
its regulations on tractors; and its power to inspect and penalize employers
for workplace hazards. However, each of these measures is limited in its
application to farmworkers.[329]

Aside from enforcement problems, several legal restrictions
prevent OSHA from protecting many farmworkers. Congress annually limits the
application of the OSH Act by exempting from all enforcement activity any farm
that employs 10 or fewer employees and has not had an active temporary labor
camp within the last 12 months.[330]
Not only are these small farms not required to provide drinking water and
sanitation facilities, the limit of OSHA jurisdiction to farms with 11 or more
workers applies even to cases where workers face imminent danger or where an
accident or death has occurred. Whatever happens on a farm with 10 or fewer
employees that has no active temporary labor camp, OSHA may not investigate.

Even on farms with more than 10 employees, many of OSHA’s
“general industry standards” that could protect farmworkers,
including children, do not apply to agriculture.[331] Among
those that do not are those regulating work at heights (such as work on
ladders), the use of personal protective requirement (including reinforced
shoes and gloves), and the availability of medical services and first aid.[332]
And OSHA has no standard at all relating to musculo-skeletal injuries, which
are among the most common injuries for children (as well as adults) working in
agriculture.

OSHA officials state that OSHA can rely on its so-called
general duty clause where standards for agriculture are insufficient.[333]
This is a requirement in the OSH Act itself that each employer must provide
each employee a job and a place to work “free from recognized hazards
that are causing or are likely to cause death or serious physical harm to his
employees.” But because this language is much more general that
requirements in OSHA regulations, it is more difficult to prove a violation of
this general duty clause. Moreover, it is not clear that OSHA has invoked this
clause to any significant degree to protect farmworkers.

OSHA officials also told Human Rights Watch that OSHA does
not conduct targeted investigations on farms but instead only responds to
written complaints, including of worker deaths or situations of imminent danger.[334]

Even OSHA regulations that do apply in agriculture are often
not protective enough. One example relates to tractors, where the standard does
not cover many older tractors. As noted above, tractor roll-overs are a leading
cause of death for farmworkers, including children. Serious injuries from
tractors can be prevented by roll-over bars or similar devices.[335]
Yet OSHA standards requiring roll-over protective structures cover only about 8
percent of all US farms due to a variety of exemptions,[336] and
in 2006, only 59 percent of tractors used on farms in the US were equipped with
them.[337]

Finally, individual states may develop and operate their own
occupational safety and health programs. These programs, called State
Plans, must be approved and monitored by federal OSHA. Once in place, they
supplant (with limited exceptions) direct federal OSHA enforcement in that state.
Twenty-five states and two territories at the time of writing had approved
State Plans.[338] OSHA previously
did little monitoring of state plans, but officials told Human Rights Watch
that they were initiating a review of every state plan following serious
deficiencies in enforcement discovered in a review of Nevada’s state plan.[339]

X. International Legal
Obligations

United States law and practice concerning farmworker
children are in violation of or are inconsistent with international conventions
on the rights of children. International Labor Organization Covention No.
182 on the Worst Forms of Child Labor, ratified by the United States in 1999, prohibits children from engaging in dangerous or harmful work. The Convention
on the Rights of the Child, to which the United States is a signatory but not a
party, seeks to protect children from economic exploitation, and also from work
that is hazardous or otherwise harmful. The failure of the United States to enforce existing laws and regulations that purport to protect children working in
agriculture further violate the international legal obligations of the United States.

ILO Convention on Worst Forms of Child Labor

In 1999, the International Labor Organization (ILO) adopted Convention
No. 182 Concerning the Prohibition and Immediate Elimination of the Worst Forms
of Child Labor (Worst Forms of Child Labor Convention). It obliges all
ratifying states “to secure the prohibition and elimination of the worst
forms of child labour as a matter of urgency.”[340] The
United States on December 2, 1999, became one of the first states to ratify
this convention. Since then, it has become one of the most widely ratified
labor conventions, with 171 states parties.

Prior to adoption of the convention, the US government spoke strongly in its favor, urging ILO member states to “join together and to
say there are some things we cannot and will not tolerate.”[341]
In November 2009 the Obama administration affirmed that “The US
Government remains committed to ensuring full US compliance with ILO Convention
No. 182.”[342]

Under the convention, “the worst forms of child
labour” include “work which, by its nature or the circumstances in
which it is carried out, is likely to harm the health, safety or morals of
children.”[343]
Exactly what constitutes such types of work is left to be determined by states
parties, in consultation with employer and worker organizations and in
consideration of international standards, particularly the ILO Worst Forms of
Child Labor Recommendation.[344]
This Recommendation, adopted in 1999 in conjunction with the convention of the
same name, states that in defining the “worst forms of child
labour” and in identifying where they exist, consideration should be
given, as a minimum, to:

(a) work which exposes children
to physical, emotional or sexual abuse;

(b) work underground, under
water, at dangerous heights or in confined

spaces;

(c) work with dangerous
machinery, equipment and tools, or which involves the manual handling or
transport of heavy loads;

(d) work in an unhealthy
environment which may, for example, expose children to hazardous substances,
agents or processes, or to temperatures, noise levels, or vibrations damaging
to their health;

(e) work under particularly difficult conditions such as
work for long hours or during the night or work which does not allow for the
possibility of returning home each day.[345]

The findings of this report show that children working in
agriculture in the United States—who number in the hundreds of
thousands—face the risks outlined in subparagraphs (c) through (e). They
work with dangerous machinery, equipment, and tools; work in an unhealthy
environment, including exposure to hazardous substances, notably pesticides;
and work for long hours, during the night, or without the possibility of
returning home each day. In addition, the nature of farmwork places female
farmworkers at an added risk of the dangers set out in subparagraph (a),
exposure to sexual abuse.

Accordingly, farmwork in the United States can run a high
risk of harming the health and safety of children, and appears in many cases to
meet the definitional requirements of the “worst forms of child
labor.” As a state party to the Worst Forms of Child Labor
Convention, the United States is obligated to take immediate and effective
steps to ascertain what forms and conditions of child labor in agriculture
violate the convention and then eliminate them.[346]

The convention further calls on member states to:
prevent children from engaging in the worst forms of child labor; provide direct
assistance for the removal of children already engaged in the worst forms of
child labor; identify and reach out to children at risk; and take account of
the special situation of girls.[347]

Far from acknowledging the danger of farmwork to children
and taking these appropriate steps, the United States by law permits children
to engage in agricultural labor with fewer restrictions than children working
in other areas. This includes permitting children to engage in hazardous
agricultural work.

The US government, in response to the ILO Committee of
Experts 2008 observations on the Application of Conventions and
Recommendations, acknowledged in 2009 that the FLSA allows children ages 16 and
17 “to perform all work,” and that it excludes certain farmworker
children from minimum age provisions and hours of work limitations.[348]
The government noted that “[t]here are currently no separate health and
safety standards under federal law for child farm workers ages 16 or 17
engaging in hazardous work,” and that it “has no special training
or instructional requirements at the federal level specifically for 16- and
17-year-old agricultural workers engaged in hazardous labor.”

The ILO’s Committee of Experts in 2010 strongly criticized
children’s involvement in hazardous agricultural work. It urged the US government “to take immediate and effective measures to comply” with the
convention “to prohibit children under 18 years of age from engaging in
hazardous and dangerous work in agriculture.”[349]
The Committee of Experts requested the government to follow-up on NIOSH’s
recommendations for changing the existing hazardous orders and adopt those
amendments. Commenting on exemptions for farms with 10 or fewer employees, it
urged the government “to ensure that the necessary monitoring mechanisms
are in place so that all farms are inspected and monitored, regardless of the
number of persons they employ.”[350]

Convention on the
Rights of the Child

The United States has signed but not ratified the Convention
on the Rights of the Child (CRC).[351] As a
signatory to the CRC, the United States is obliged to refrain from acts that would
defeat the treaty’s object and purpose.[352]
The CRC sets out the minimum protections to which children—defined as persons
under age 18—are entitled.
In additional to CRC protections relating to health and education, article 32
of the CRC is of particularly relevance to farmworker children. It provides
specifically that children have a right “to be protected from economic
exploitation and from performing any work that is likely to be hazardous or to
interfere with the child's education, or to be harmful to the child's health or
physical, mental, spiritual, moral or social development.” The article requires
governments to take appropriate legislative, administrative, social and
educational measures in this regard, and especially to provide for a minimum
age of employment, appropriate regulation of work hours and conditions of
employment, and appropriate sanctions to ensure enforcement of the article.[353]

Convention on the
Elimination of Racial Discrimination

The burden of weaker
labor law protections for agricultural workers compared to non-agricultural
workers in the United States falls overwhelming on Hispanic American citizens
and immigrants, and amounts to discrimination under international law.

Most hired crop
workers in the United States are Hispanic: 83 percent of hired crop workers identified themselves as members of a
Hispanic group in 2001-2002, the most recent year for which data are available.[354]
When all employed “miscellaneous agricultural workers,” including
livestock workers, are considered, 45 percent identify as Hispanic.[355]By
comparison, 14 percent of all US civilian workers described themselves as
Hispanic in 2008.[356]

The term
“Hispanic” generally refers to ethnicity; persons who identify as
Hispanic may also identify themselves as “white,”
“black,” “indigenous,” or another race. No data is available on the ethnicity of child
workers compared with adults; indeed, the data exclude younger workers: NAWS
does not count child workers under age 14; the Bureau of Labor Statistics does
not count child workers under 16.

International law binding on the United
States, notably the International Covenant on Civil and Political Rights
(ICCPR) and the International Convention on the Elimination of All Forms of
Racial Discrimination (ICERD), affirms the equality of all persons before the
law and prohibits governments from discriminating in policy or practice on
ethnic grounds.[357] Not all distinctions made by governments, however, constitute
impermissible discrimination. The Human Rights Committee, which monitors
compliance with the ICCPR, has observed that differentiation in treatment will
not constitute discrimination if the criteria for such differentiation
“are reasonable and objective and if the aim is to achieve a
purpose” that is legitimate under the ICCPR.[358]

While US constitutional prohibitions focus on
discriminatory intent,[359] the ICERD defines prohibited discrimination as any race-based distinction,
exclusion, restriction or preference that has “the purpose or effect”
of curtailing human rights and fundamental freedoms.[360] The specific
reference to “purpose or effect” makes clear that discrimination
can exist in the absence of an intent to harm members of a particular race or
ethnicity.

The Committee on the Elimination of Racial
Discrimination (the “Committee”), which monitors state compliance
with the ICERD, has interpreted the convention to prohibit
laws or policies that have “an unjustifiable disparate impact” on
racial and ethnic minorities.[361] It has called on
states to eliminate laws or practices that may be race-neutral on their face,
but that unjustifiably have significant racial disparities in their impact even
in the absence of racial animus.[362] Labor laws and policies
that have a racially disparate impact and are not reasonably designed to
achieve a legitimate state purpose violate the international human right to be
free from discrimination.

The Committee has twice informed the United States that ICERD prohibits discrimination in all its forms, including practices with
unintentional discriminatory effect. In 2001, the Committee recommended that
the United States take appropriate measures to review legislation and policies
to “ensure effective protections against any form of racial
discrimination and any unjustifiably disparate impact.”[363]
In 2008, the Committee again concluded that the United States should ensure
that racial discrimination is prohibited in all its forms, including laws and
practices “that may not be discriminatory in purpose, but in effect.”
It stated that “indirect—or de facto—discrimination occurs
where an apparently neutral provision, criterion or practice would put persons
of a particular racial, ethnic or national origin at a disadvantage compared
with other persons, unless that provision, criterion or practice is objectively
justified by a legitimate aim and the means of achieving that aim are
appropriate and necessary.” The committee called on the government
“to take all appropriate measures” to review existing laws policies
to “ensure the effective protection against any form of racial
discrimination and any unjustifiable disparate impact.”[364]

XI. Detailed
Recommendations

To the United States Congress

Amend the Fair Labor Standards
Act (FLSA) to:

apply the same age and hour requirements to children working for
hire in agriculture as already apply to all other working children: prohibit
the employment of children age 13 and younger; limit the number of hours that
children ages 14 and 15 can legally work to 3 hours a day on a school day and 18
hours a week during a school week; 8 hours a day on a nonschool day and 40
hours a week when school is not in session; and prohibit before-school work by children
age 15 and younger;

raise the minimum age for particularly hazardous work in
agriculture to 18, in line with existing standards in all other industries;

incorporate the Environmental Protection Agency’s Worker
Protection Standard, 40 C.F.R. Part 170, into the child labor regulations,
thereby protecting children working in agriculture not only from pesticides
with acute effects (such as nausea, skin rashes, and dizziness), but also from
those with chronic or long-term effects (such as cancer and interference with
sexual reproduction);

require agricultural employers to report work-related deaths,
serious injuries, and serious illnesses to the US Department of Labor in order
to collect and publish better statistics than are currently available about
such incidents; and

require the US
Department of Labor to submit to Congress an annual report on work-related
deaths, injuries, and illnesses of children working in agriculture, including
an evaluation of the data that highlights, among other things, safety and
health hazards and the extent and nature of child labor violations.

Halt the yearly approval of a special
provision in the Department of Labor appropriations act that exempts almost
all farms with 10 or fewer employees from the jurisdiction of the
Occupational Safety and Health Administration (OSHA).

Provide sufficient support to
programs, such as those administered by the Department of
Education’s Office of Migrant Education, to remove barriers to the
school enrollment, attendance, and achievement of child farmworkers and
ensure that child farmworkers have access to and benefit from the same
appropriate public education, including public preschool education,
provided to other children.

Require the Department of
Education’s Office of Migrant Education to collect and analyze state
data on school completion rates for all child farmworkers and to report
national and state results annually.

Repeal programs that require local police to enforce
immigration laws so that undocumented children are able to report abuse
without fear of deportation for themselves or their family members.

To the United States
Department of Labor

Dramatically increase, through
the Wage and Hour Division, the number of child labor and minimum wage
investigations in agriculture, the most dangerous industry in which
children are allowed to work.

Improve compliance with existing
labor law by seeking higher civil money and criminal penalties in
accordance with the law. In particular, amend the civil penalty
regulations to reflect amendments made by a rider to the Genetic
Information Non-discrimination Act (“GINA”) in 2008 that raise
the $11,000 maximum penalty to $50,000 where the violation of a child
labor provision results in death or serious injury, and where the higher
penalty is doubled to $100,000 in the case of a repeat or willful
violation. Make the department’s civil money penalty regulations (29
C.F.R. Part 579) more precise in order to assure that it imposes higher
penalties, and that these higher penalties are upheld in litigation.

Appropriately
use the Fair Labor Standards Act's “hot goods” provision,
which prohibits the interstate movement of goods produced in violation of
child labor or minimum wage laws, where the traditional course of
citations and relatively insignificant civil money penalties would have
little deterrent effect.

Propose and press for
much-needed amendments to the list of jobs in agriculture that
deemed to be “particularly hazardous” for children, as
recommended by the Centers for Disease Control’s National Institute
for Occupational Safety and Health (NIOSH) in 2002.

Request the National Agricultural Workers Survey (NAWS) to
expand its surveys to collect information about child workers under, as
well as over, age 14. Explore methods of counting working children that do
not rely on reports from growers and adult farmworkers who may underreport
the numbers of working children.

To Occupational Safety
and Health Administration (OSHA)

Conduct targeted
investigations in agriculture rather than responding only to written
complaints.

Continue and accelerate monitoring of “state
plans” and require that all states enforcing OSHA-approved plans do
so effectively, including frequent unannounced inspections.

To the Environmental
Protection Agency (EPA)

Amend the Worker Protection
Standard to impose a minimum age of 18 for all pesticide handlers.

Revise the restricted-entry
intervals (REIs), which prohibit entry into an area treated by pesticides
for a specified period of time following the application of the
chemicals. Distinguish between adults and children, and impose more stringent
REIs for children. Incorporate an additional safety margin on top of
what is determined necessary to ensure short and long-term safety, and
take into account the combined effect of both occupational and
non-occupational exposures.

Closely monitor states'
enforcement of the Worker Protection Standard and related pesticide
regulations to ensure that such enforcement is vigorous and meaningful.

Further expand the program to
educate workers regarding the Worker Protection Standard, and ensure that
materials used are culturally, age, and language appropriate.

Ensure that state agencies responsible for enforcement of
EPA regulations are staffed by a sufficient number of trained, bilingual
(Spanish and English) compliance officers.

To the United States
Department of Education

Conduct a study, with leadership from the Office on
Migrant Education, to establish accurate data on school drop-out rates for
all child farmworkers.

To All States

Ensure that state child labor
laws are at least as protective as federal standards.

Set or raise the minimum age
for agricultural work to at least 14, with the
exception of children working on farms owned and operated by their
parents.

Amend workers’ compensation
laws to ensure coverage for farmworkers equal to that of other workers.

Provide training and a strong mandate to law enforcement
to better respond to cases of sexual violence against farmworker girls and
women.

Acknowledgments

This report was researched and written by Zama Coursen-Neff,
deputy director of the Children’s Rights Division of Human Rights Watch.
The report was edited by Jo Becker, advocacy director of the Children’s
Rights Division. Lance Compa, Andrew Mawson, Alison Parker, James Ross, Rebecca
Schleifer, Janet Walsh, and Lois Whitman also reviewed and commented on the
report. Alison Parker contributed to the material relating to immigration. Zoe
Hutchison, Kyle Knight, Heather Renwick, and Andrew Strong provided research
assistance.

Human Rights Watch also thanks Robin Romano, filmmaker, and Lee
Tucker, the author of the organization’s 2000 report on child
farmworkers, Fingers to the Bone: United States Failure to Protect Child
Farmworkers.

Most of all, we thank the many children and young people who
spoke with us, recounting their experiences in the fields of the United States.
With them this report would not have been possible.

[3]For more information about abuses suffered by guest workers,
see Southern Poverty Law Center, “Close to Slavery: Guestworker Programs
in the United States,” March 2007,
http://www.splcenter.org/sites/default/files/downloads/Close_to_Slavery.pdf
(accessed April 7, 2010); and Patricia Medige, “Perspectives on the Bush
Administration’s New Immigrant Guestworker Proposal: Immigrant Labor
Issues,” Denver Journal of International Law and Policy, vol. 32 (2004),
p. 739. Less than 5 percent of all hired farmworkers are hired through the
program. William Kandel, US Department of Agriculture (USDA) Economic Research
Service, “Profile of Hired Farmworkers, A 2008 Update,” July 2008, http://www.ers.usda.gov/Publications/ERR60/ERR60.pdf
(accessed April 8, 2010), p. 14.

[4]The government estimates that approximately 2.3 million
adolescents ages 15 to 17 worked in all kinds of jobs (including agriculture)
in the U.S. in 2008, but this estimate excludes children under age 14 who can
work only in agriculture. National Institute for Occupational Safety and Health
(NIOSH), Centers for Disease Control, “Young Worker Safety and
Health,” January 13, 2010, http://www.cdc.gov/niosh/topics/youth/
(accessed April 3, 2010).

[5]Emails from John Myers, Health Statistician, NIOSH, to
Human Rights Watch, April 5 and 7, 2010 (citing 2007 Census of Agriculture for
total agricultural workers and NIOSH 2006 research on children directly hired
by farm operators). These numbers, which are based on telephone reports from
the farmers themselves, include adults and children working in both crops and
livestock. See US Department of Agriculture, “2007 Census of Agriculture,”
2009, table 7, p. 336, and appendix B, p. B-13.By comparison, the US Department of Labor’s
National Agricultural Workers Survey (NAWS), which does not count working
children under age 14, found that 3 percent of hired crop workers were ages 14-17
in 2005-2006. US Department of Labor, “The National Agricultural Workers
Survey: Public Access Data,” http://www.doleta.gov/agworker/naws.cfm
(accessed April 27, 2010).

[8]US Department of Labor, “The National
Agricultural Workers Survey: Public Access Data,” http://www.doleta.gov/agworker/naws.cfm
(accessed April 27, 2010) (data from 2005-2006). Farm
labor contractors are central to the structure of agricultural production in
the United States. Farm labor contractors range in size from single
individuals to large corporations. Under contract to a grower or farmer, a farm
labor contractor typically is responsible for hiring and overseeing the workers
and ensuring that the work—planting, pruning, weeding,
harvesting—is completed satisfactorily. Farm labor contractors
usually are paid a lump sum by the growers, which they then use to secure labor
as needed and in turn charge hired farmworkers in exchange for arranging
employment, further reducing their pay. Kandel, “Profile of Hired
Farmworkers, A 2008 Update,” p. 22 (see also p. 25). Where
a farm labor contractor is used, the grower may have no direct contact with the
workers. Either the employer or the farm labor contractor might set the rate at
which wages will be paid, but it is the farm labor contractor who recruits and
contracts with the workers, pays the wages, makes payroll deductions, and often
transports the workers to the work site each day (often for a fee).

[10]
According to data from the US Census Bureau Current Population Survey, almost
half of all hired farmworkers live in just five states: California, Texas, North Carolina, Washington, and Oregon. USDA Economic Research Service, “Rural
Labor and Education: Farm Labor,” March 31, 2008, http://www.ers.usda.gov/Briefing/LaborAndEducation/FarmLabor.htm
(accessed April 3, 2010).

[11]
Ibid. (citing data from NAWS through 2006). “Migrating hired farmworkers
exhibit different demographic and employment profiles from settled farmworkers:
they are younger, more likely to be male, and more often Hispanic.” Ibid.

[13]US Department of Labor, “The National
Agricultural Workers Survey: Public Access Data,” http://www.doleta.gov/agworker/naws.cfm
(accessed April 27, 2010). Twenty-eight percent said that they or
someone in their household had used at least one type of public assistance
program in the previous two years (most commonly Medicaid (23 percent), Women
Infants and Children (13 percent) and food stamps (6 percent)) but less than 1
percent reported that they or someone in their family had received general
assistance welfare or temporary assistance to needy families (TANF). Ibid.

[16]
The numbers of new arrivals to the US from Mexico dropped from 653,000 between
March 2004 and March 2005 to just 175,000 between March 2008 and March 2009,
the lowest total in the decade. Migration Policy Institute, “Migration
and the Global Recession:A Report Commissioned by the BBC World
Service,” September 2009, http://www.migrationpolicy.org/pubs/MPI-BBCreport-Sept09.pdf
(accessed April 14, 2010) p. 19 (citing US population survey data). However,
according to the Migration Policy Institute, “the recent steep slowdown
in the flows from Mexico is largely driven by unauthorized Mexican migrants
staying home, primarily in response to limited economic prospects in the United States . . . [and] the flow of legal immigrants from Mexico has not changed.” Ibid.
(emphasis in original).

[20]
A "small farm" is one which did not employ more than 500 man-days of
agricultural labor during any calendar quarter of the preceding year. 29 U.S.C.
sec. 213(a). Five hundred man-days would typically be reached by seven
employees working six days a week during a calendar quarter. Human Rights
Watch, Fingers to the Bone (New York: Human Rights Watch, June 2000), http://www.hrw.org/en/reports/2000/06/02/fingers-bone-0,
p. 38 note 113.

[22]Human Rights Watch interview with Julia N. (not her
real name), age 18, Benson, North Carolina, August 5, 2009. Unlike federal law,
California state law sets 12 as the minimum age to work and requires
employers to obtain work permits before employing minors under age 18.

[47]
Human Rights Watch interview with Sam B., age 17, Plainview, Texas, July 21,
2009. A wage of $300 for 55 hours a week would constitute $5.45 an hour; $200
for 55 hours would be $3.64 an hour. Compared with the federal minimum wage at
the time of $6.55 an hour, Sa, earned $60.50 to $160.05 a week less than he
should have for those hours of work.

[48]
Human Rights Watch interview with Antonio M. (not his real name), age 12, and
his mother, Goldsboro, North Carolina, August 6, 2009.

[52]
Employers are exempt from minimum wage requirements if they did not utilize
more than 500 “man days” of agricultural labor in any calendar
quarter of the preceding calendar year, with a “man day” defined as
any day during which an employee performs agricultural work for at least one
hour. Employees are not entitled to minimum wage if:

·they are immediate family members of their employer;

·they are principally engaged in the production of livestock;

·they are local hand harvest laborers who commute daily from their
permanent residence, are paid on a piece rate basis in traditionally
piece-rated occupations, and worked in agriculture less than 13 weeks during
the preceding calendar year; or

·they are non-local children 16 years or younger who are hand
harvesters, paid on a piece rate in traditionally piece-rated occupations,
employed on the same farm as their parent, and are paid the same piece rate as
those over 16.

29 C.F.R. sec. 780.300.

In addition, employers may pay youth under age 20 a
lower minimum wage during the first 90 consecutive calendar days after their
initial employment.

[55]
29 U.S.C. sec. 152. As a result, agricultural workers can be fired for joining
a labor union or engaging in collective action against an employer, and have no
way of joining together to compel an employer to negotiate wages paid, hours
worked, and other conditions of employment.

[56]
The connection between the failure to enforce minimum wage laws for adults and
child labor was highlighted by attorneys who advocate on behalf of farmworkers.
See, for example, Human Rights Watch telephone interview with Thomas Thornburg,
managing attorney, and staff of Farmworker Legal Services of Michigan, Bangor,
Michigan, July 20, 2009.

[57]According to NAWS, crop
workers were paid an average of $8.09 an hour in 2005-2006. US Department of
Labor, “The National Agricultural Workers Survey: Public Access Data,”
http://www.doleta.gov/agworker/naws.cfm (accessed April 27, 2010). The US
Department of Agriculture reported that the median wage for nonsupervisory
hired farm labor in 2006 was $6.75 per hour, “among the lowest wages paid
for a typical unskilled occupation.”USDA Economic Research
Service, “Rural Labor and Education: Farm Labor” (using information
from the USDA, the National Agricultural Statistics Service, and the Farm Labor
Survey).

[58]
For example, if a harvester is shown as having worked only 40 hours with a
gross wage of $290 in the week, that indicates an hourly wage of $7.25, the
current minimum wage. But if the harvester actually worked 60 hours a week, he
was paid only $4.83 an hour, far below the minimum wage.

[60]
Farmworkers in the fields many have to interrupt their work because of rain or
a cold snap, but if they are required to wait in the fields until the weather
improves, this time is ordinarily considered to be compensable, because the
employer, as courts have ruled, has “usurped” the workers’
time. Adding this forced downtime to other hours of productive work can result
in minimum wage violations if the employer fails to pay for it. A similar
unpaid time situation can occur when workers are required to be in the fields
at a specific time, only to be told that the temperature, humidity, and other
factors are not yet right for harvesting crops. For example, 16-year-old Diana
G. described a recent experience of getting up at 3 a.m., traveling an hour and
a half to the fields, and upon arrival being told to wait 30 minutes to start
working. In fact, she was not allowed to start working until much later, at 10
a.m., and at 3 p.m., she said “they said we had to go because it’s
too hot and will make the blueberries soggy.” She was not paid for the
time she spent waiting to work although she was obligated to be there. Human Rights
Watch interview with Diana G. (not her real name), age 16, Goldsboro, North Carolina, August 6, 2009.

[61]Crop workers were employed on US farms in 2005-2006 an
average of 34.5 weeks (65 percent of the year) and in non-farm activities for a
little more than 3 weeks (6 percent of the year); 12 percent of hired crop
workers also held a non-farm job at some point during the year. US Department
of Labor, “The National Agricultural Workers Survey: Public Access Data,”
http://www.doleta.gov/agworker/naws.cfm (accessed April 27, 2010).

[62]
Human Rights Watch interview with Walter R. (not his real name), age 17, and
his parents, Goldsboro, North Carolina, August 6, 2009.

[67]
Southern Poverty Law Center, “Under Siege: Life for Low-Income Latinos in
the South,”April 2009, www.splcenter.org/undersiege (accessed
March 20, 2010), p. 6. The workers surveyed were employed in agriculture and
other sectors. As noted above, in this report, the terms “Hispanic”
and “Latino” are used according to the term employed in the survey
referenced.

[68]
See, for example, Human Rights Watch interviews with Felipe D., age 15, with
Walter R. and his parents, and with Diana G., age 16, Goldsboro, North Carolina, August 6, 2009.

[69]
In contrast with Human Rights Watch’s interviews, NAWS reported that most
employers covered the cost of using tools or equipment in 2005-2006. US Department of Labor, “The National Agricultural
Workers Survey: Public Access Documentation,” http://www.doleta.gov/agworker/naws.cfm
(accessed April 27, 2010).

[81]
In 2005-2006, 84 percent of crop workers reported being paid by the hour, 9
percent by the piece, 2 percent by a combination of hourly and piece rate pay,
and 2 percent by salary. US Department of Labor,
“The National Agricultural Workers Survey: Public Access Documentation,”
http://www.doleta.gov/agworker/naws.cfm (accessed April 27, 2010).

[85]
California Department of Education, “California Migrant Education
Program: Comprehensive Needs Assessment, Initial Report of Findings,”
2007, http://www.cde.ca.gov/sp/me/mt/documents/cnareport.pdf
(accessed April 8, 2010), p. 2. Anecdotally, a migrant education staff member
at Immokalee High School, where many students are from farmworker families,
told us that 400 to 450 students enter the eighth grade every year and
“by the time they graduate it’s 200 to 250. So about half drop out
or move out of the area.” Human Rights Watch interview with migrant
education staff member, Immokalee, Florida, March 25, 2009.

[104]
Association of Farmworker Opportunity Programs, “Children in the Fields:
An American Problem,” May 2007, http://www.afop.org/CIF%20Report.pdf (accessed
April 14, 2010) (citing information provided to AFOP by the US Department of
Education, Office of Migrant Education, February 2007), p. 19, note 76.

[105]
NIOSH bases this statement on the fatality rate of workers between 1992 and
2000. NIOSH, “NIOSH Alert: Preventing Deaths, Injuries and Illnesses of
Young Workers,” no. 2003-128, July 2003, p. 4.

http://www.bls.gov/iif/oshwc/cfoi/cfoi_rates_2008hb.pdf
(accessed April 4, 2010). The fatality rate for all civilian workers in 2008
was 3.7; for “crop production” it was 32.5.

[107]
Email from Sean Smith, Bureau of Labor Statistics, US Department of Labor, to
Human Rights Watch, March 31, 2010 (citing preliminary data); Bureau of Labor
Statistics, US Department of Labor, “2008 National Census of Fatal
Occupational Injuries Preliminary Data,” http://www.bls.gov/iif/oshwc/cfoi/cftb0239.pdf
(accessed April 21, 2010); Bureau of Labor Statistics, US Department of Labor,
“2007 National Census of Fatal Occupational Injuries Preliminary
Data,” http://www.bls.gov/iif/oshwc/cfoi/cftb0230.pdf (accessed April 21,
2010); Bureau of Labor Statistics, US Department of Labor, “2006 National
Census of Fatal Occupational Injuries Preliminary Data,”
http://www.bls.gov/iif/oshwc/cfoi/cftb0221.pdf (accessed April 21, 2010);
Bureau of Labor Statistics, US Department of Labor, “2005 National Census
of Fatal Occupational Injuries Preliminary Data,”
http://www.bls.gov/iif/oshwc/cfoi/cftb0212.pdf (accessed April 21, 2010).
In total, 304 children and adults died from work-related injuries in crop
production, and 34 children under age 18 died from injuries related to work in
all sectors in 2008. Email from Sean Smith, Bureau of Labor Statistics, US
Department of Labor, to Human Rights Watch, March 31, 2010 (citing preliminary
data). Although Human Rights Watch could not obtain information about how many
of the children who died in crop production during this time period were under
age 14, by comparison, from 1998 to 2002, 9 of the 65 children under 18 died
while working in crop production were under age 14. Notably, agriculture is the
only sector in which work-related deaths were recorded for children under age
14 during this time period. Janice Windau and Samuel Meyer, Bureau of Labor
Statistics, US Department of Labor, “Occupational injuries among young
workers,” Monthly Labor Review, October 2005, p. 17, http://www.bls.gov/opub/mlr/2005/10/art2full.pdf
(accessed April 4, 2010).

[114]
See, for example, Sara A. Quandt, “Health of Children and Women in the
Farmworker Community in the Eastern United States,” Latino Farmworkers
in the Eastern United States, Arcury and Quandt, eds., pp. 173-200.

[143]
May, “Occupational Injury and Illness in Farmworkers in the Eastern United
States,” Latino Farmworkers in the Eastern United States, Arcury
and Quandt, eds., p. 78.

[144]Bureau of Labor Statistics, US Department of Labor, “TABLE R1. Number of nonfatal occupational injuries and illnesses involving days away from work(1) by industry and selected natures of injury or illness, 2006,” November 8, 2007, http://stats.bls.gov/iif/oshwc/osh/case/ostb1793.txt (accessed April 15, 2010).

[145]
May, “Occupational Injury and Illness in Farmworkers in the Eastern
United States,” Latino Farmworkers in the Eastern United States, Arcury
and Quandt, eds., pp. 78.

[155]
These include organophosphorus and organochlorine pesticides. Most workers now
are exposed to nonpersistent pesticides, which are metabolized in the body
within a few days, compared with older pesticides which remain in the body and
environment for a long time. Ibid., pp. 104, 122.

[157]
Ibid., pp. 104-106. Farmworkers and their family members, including children,
are also exposed in their homes, which may be contaminated through years of
drift, accumulated pesticides brought in through contaminated clothing and
containers, and application in the homes, particularly in dilapidated,
pest-infested housing. Ibid., and see, for example, Quirina M. Vallejos, Sara
A. Quandt, and Thomas A. Arcury, “The Condition of Farmworker Housing in
the Eastern United States,” Latino Farmworkers in the Eastern United
States, Arcury and Quandt, eds.

[170]
A study of children under age 18 with acute occupational pesticide-related
poisoning from a one-year period found that 47 percent (33 of 70) of ill
children in agriculture were exposed through “contact with treated
surfaces, most commonly by entering farm fields recently sprayed by
pesticides.” Calvert et al, “Acute Pesticide-Related Illnesses
Among Working Youths, 1988–1999,” American
Journal of Public Health, p. 608.

[174]
Officials in the EPA’s Office of Pesticide Programs told Human Rights
Watch that they were unable to estimate farmworkers’ overall pesticide
exposure. Human Rights Watch interview with Kevin Keaney and staff of the
Office of Pesticide Programs, Environmental Protection Agency, Washington, DC,
February 23, 2010. In addition to the barriers farmworkers face in accessing
any kind of medical care, poisoned workers who do find care may not be
correctly diagnosed, and diagnosed cases may not be reported to surveillance
systems. Calvert et al, “Acute Pesticide-Related Illnesses Among Working
Youths, 1988–1999,” American Journal of Public Health, p.
609.

[182]
Human Rights Watch’s interviews are consistent with research in North Carolina finding that “farmworkers generally lack knowledge of the pesticides
applied where they work: what is applied, where it is applied, and when it is
applied.” Arcury and Quandt, “Pesticide Exposure Among Farmworkers
and Their Families,” Latino Farmworkers in the Eastern United States, Arcury
and Quandt, eds., p. 116.

[183]Human Rights Watch interview with Alejandro P. (not his
real name), age 14, accompanied by his uncle, Benson, North Carolina, August 5,
2009.

[185]
Arcury and Quandt, “Pesticide Exposure Among Farmworkers and Their
Families,” Latino Farmworkers in the Eastern United States, Arcury
and Quandt, eds., p. 119. Gloves made of cloth and leather hold the pesticides
to the skin and are also a safety problem. Email from Dr. Thomas A. Arcury,
Director, Center for Worker Health, Wake Forest University School of Medicine,
to Human Rights Watch, April 8, 2010.

[187]
For a discussion of this research, see Arcury and Quandt, “Pesticide
Exposure Among Farmworkers and Their Families,” Latino Farmworkers in
the Eastern United States, Arcury and Quandt, eds., p. 113.

[192]
Officials in the EPA’s Office of Pesticide Programs could not estimate
how many workers were untrained because current regulations do not require
recordkeeping, but acknowledged “many gaps.” Officials also told us
that some workers who had been trained would not necessarily report that they had.
Human Rights Watch interview with Keaney and staff of the Office of Pesticide
Programs, Environmental Protection Agency, February 23, 2010.

[208]
In contrast, according to the National Agricultural Workers Survey, in 2005-2005,
crop workers reported that their employer did not provide, on a daily basis, both
drinking water and cups (14 percent), water for washing (3 percent), and a
toilet (4 percent). US Department of Labor,
“The National Agricultural Workers Survey: Public Access Documentation,”
http://www.doleta.gov/agworker/naws.cfm (accessed April 27, 2010).

[209]
May, “Occupational Injury and Illness in Farmworkers in the Eastern
United States,” Latino Farmworkers in the Eastern United States, Arcury
and Quandt, eds., p. 77.

[219]
Toilets and handwashing facilities must be “provided for each (20)
employees or fraction thereof,” “adequately ventilated,
appropriately screened, have self-closing doors that can be closed and latched
from the inside and shall be constructed to insure privacy,” “be
located within a one-quarter-mile walk of each hand laborer's place of work in
the field.” 29 C.F.R. sec. 1928.110(c)(v).

[223]
McKnight and Spiller, “Green Tobacco Sickness in Children and
Adolescents,” Public Health Reports, p. 603.

[224]Ibid. When “topping,” workers walk through
the rows, snapping off the flower from the plant. Harvesting occurs in one of
two ways. For flue-cured tobacco, workers snap off individual leaves as they
ripen, typically grasping the picked leaves between their arm and chest until
they cannot hold anymore. To harvest burley tobacco, workers grasp the stalk of
the plant, cut the base, and impale them on a spear to dry in the field, moving
them inside only if rains. Ibid.

[227]
Sara Rosenbaum and Peter Shin, Center For Health Services Research and Policy,
George Washington University, “Migrant and Seasonal Farmworkers: Health
Insurance Coverage and Access to Care,” Kaiser Commission on Medicaid and
the Uninsured, April 2005, p. 3; and US Department of Labor, “National
Agriculture Workers Survey (Release 3.0),” 2000.

[228]
Quandt, “Health of Children and Women in the Farmworker Community in the Eastern United States,” Latino Farmworkers in the Eastern United States, Arcury
and Quandt, eds., p. 177 (citing Weathers et al. 2004).

[229]
Thomas A. Arcury and Sara A. Quandt, “The Health and Safety of
Farmworkers in the Eastern United States: A Need to Focus on Social
Justice,” Latino Farmworkers in the Eastern United States, Arcury
and Quandt, eds., p. 2; and Rosenbaum and Shin, “Migrant and Seasonal
Farmworkers: Health Insurance Coverage and Access to Care,” pp. 1, 3-4;
US Department of Labor, “National Agriculture Workers Survey (Release
3.0).” See also National Center for Farmworker Health, Inc. “About
America’s Farmworkers: Farmworker Health,” undated, http://www.ncfh.org/?pid=4&page=7
(accessed January 25, 2010).

[259]
The Bandana Project was launched in June 2007 to raise awareness about
workplace sexual violence against farmworker women. More than 2,000 white
bandanas have been decorated and displayed as a show of solidarity to end this
violence.

[262]
See US Constitution, amendment 14 (1) (“All persons born
… in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein
they reside.”)

[265]From 2006 to 2008,
workplace immigration raids were on the rise. The Obama administration has
distanced itself from such raids, suggesting that the focus should be on
employers who hire undocumented workers, and not solely on deporting workers.
Lornet Turnbull, “Napolitano demands review of ICE raid at Bellingham
plant,” Seattle Times, February 26, 2009. Nevertheless, ICE made 6,287
arrests for immigration offenses at workplaces in 2008; only 135 were owners,
managers, supervisors, or human resources employees charged with harboring or
knowingly hiring undocumented workers—the remainder were the workers
themselves. US Immigration and Customs Enforcement, “Worksite
Enforcement,” April 30 2009, http://www.ice.gov/pi/news/factsheets/worksite.htm
(accessed April 22, 2010). Such raids chill workers’ willingness to come
forward about wage or conditions violations in the workplace. That chilling
effect is only heightened by the fact that some such enforcement actions have
come even in the midst of actions by workers to exercise their labor rights.

[266]
“Memorandum of Understanding Between the Immigration and Naturalization
Service Department of Justice and the Employment Standards Administration Department
of Labor,” November 23, 1998, http://www.dol.gov/esa/whd/whatsnew/mou/nov98mou.htm
(accessed April 22, 2010).

[267]
Government Accountability Office, “Better Use of Available Resources and
Consistent Reporting Could Improve Compliance,” no. GAO-08-962T, July 15,
2008.

[268]
This guidance, which appears as an ICE “Operating Instruction” on
labor disputes, provides that ICE agents should consider whether tips about
alleged employment of undocumented workers are being provided to the agency in
order to interfere with labor rights. ICE Operating Instruction 287.3(a), http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-53663/0-0-0-61045/0-0-0-61070.html#0-0-0-31745
(accessed April 22, 2010).

[270]
Section 287(g) of the Immigration and Nationality Act “authorizes
the secretary of the U.S. Department of Homeland Security (DHS) to enter into
agreements with state and local law enforcement agencies, permitting designated
officers to perform immigration law enforcement functions, pursuant to a
Memorandum of Agreement (MOA), provided that the local law enforcement officers
receive appropriate training and function under the supervision of sworn U.S.
Immigration and Customs Enforcement (ICE) officers.” Delegation of
Immigration Authority Section 287(g): Immigration and Nationality Act, Immigration
and Customs Enforcement, 1996,
http://www.ice.gov/partners/287g/Section287_g.htm, 287(g).

[272]
Southern Poverty Law Center, “Racial Profiling by Law
Enforcement is Constant Threat,” April 2009,
http://www.splcenter.org/publications/under-siege-life-low-income-latinos-south/2-racial-profiling
(accessed April 7, 2010); see also Southern Poverty Law Center, “Close to
Slavery: Guestworker Programs in the United States,” pp. 1-2.

[273]
Human Rights Watch telephone interview with Ramírez, Southern Poverty
Law Center, December 30, 2009. In areas with 287(g) agreements, “both
documented and undocumented immigrants as well as Latino US citizens told
surveyors that the program made them fearful of the police and reluctant to
call the police if victimized.” Southern Poverty Law Center, “Under
Siege: Life for Low-Income Latinos in the South,” p. 27.

[274]
Southern Poverty Law Center, “Under Siege: Life for Low-Income Latinos in
the South,” p. 31. For example, the organization describes contacting a
local prosecutor about the sexual assault of a 13-year-old Latino girl and the
prosecutor saying that if the girl came forward and he discovered she was
undocumented, he would contact ICE. The family decided not to report the case
and the rapist went unpunished. Ibid., p. 27.

[276]
Regarding international law that protects the rights of all workers,
irrespective of immigration status, see International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families
(Migrant Workers Convention), adopted December 18, 1990, G.A. Res. 45/158, annex,
45 U.N. GAOR Supp. (No. 49A) at 262, U.N. Doc. A/45/49 (1990), entered into
force July 1, 2003, art. 25; ILO Convention No. 97 concerning Migration for
Employment Convention (Revised), adopted July 1, 1949, entered into force
January 22, 1952, art. 6. The Inter-American Court of Human Rights (IACHR) said
that despite their irregular status, “If undocumented workers are
contracted to work, they immediately are entitled to the same rights as all
workers . . . . This is of maximum importance, since one of the major problems
that comes from lack of immigration status is that workers without work permits
are hired in unfavorable conditions, compared to other workers.” See
Inter-American Court of Human Rights, “Legal Condition and Rights of
Undocumented Migrant Workers,” Consultative Opinion OC-18/03 (September
17, 2003). The IACHR specifically mentioned several workplace rights that it
held must be guaranteed to migrant workers, regardless of their immigration
status:

In the case of migrant workers, there are certain
rights that assume a fundamental importance and that nevertheless are
frequently violated, including: the prohibition against forced labor, the
prohibition and abolition of child labor, special attentions for women who
work, rights that correspond to association and union freedom, collective
bargaining, a just salary for work performed, social security, administrative
and judicial guarantees, a reasonable workday length and in adequate labor
conditions (safety and hygiene), rest, and back pay.

[290]
US Department of Labor, “2008 Statistics Fact Sheet,” http://www.dol.gov/whd/statistics/2008FiscalYear.htm
(accessed April 22, 2010). The annual number of child labor cases in
agriculture in the three-year period from 2007 to 2009 remained stable—35
cases in 2007, 34 in 2008, and 36 in 2009—indicating that 2009 was not an
aberration in recent enforcement numbers. US Department of Labor, “Report
for the period of September 1, 2007 to August 30, 2009, made by the Government
of the United States of America, in accordance with Article 22 of the
Constitution of the International Labor Organization, on the measures taken to
give effect to the provisions of the Worst Forms of Child Labor Convention, 1999
(No. 182),” undated, p. 9.

[296]
US Government Accountability Office, “Department of Labor Wage and Hour
Division’s Complaint Intake and Investigative Processes Leave Low Wage
Workers Vulnerable to Wage Theft,” Testimony Before the Committee on
Education and Labor, House of Representatives, March 25, 2009.

[298]
Southern Poverty Law Center, “Under Siege: Life for Low-Income Latinos in
the South,” p. 6.

[299]
The Government Accountability Office also found that where the Wage and Hour
Division made phone calls to the employer (known as
“conciliations”) “where the employer refuses to pay, their
offices lack the resources to investigate further or compel payment. . .
[I]n some conciliations, the employer is able to avoid paying back wages simply
by refusing.” US Government Accountability Office, “Department of
Labor Wage and Hour Division’s Complaint Intake and Investigative
Processes Leave Low Wage Workers Vulnerable to Wage Theft,” Testimony
Before the Committee on Education and Labor, House of Representatives, p. 119.

[302]
According to data from the Department of Labor, it concluded 1,129 cases of
child labor violations in 2008 involving 4,737 children, and assessed
$4,218,088 in child labor civil monetary penalties. US Department of Labor,
“Report for the period of September 1, 2007 to August 30, 2009, made by
the Government of the United States of America, in accordance with Article 22
of the Constitution of the International Labor Organization, on the measures
taken to give effect to the provisions of the Worst Forms of Child Labor
Convention, 1999 (No. 182),” sec. II. The Wage and Hour Division was not
able to make information on penalties assessed in 2009 available at the time of
writing.

[305]The hot good provision came into use by the Wage and Hour
Division in 1998, although it has been part of the FLSA since its origination
in 1938. The provision as it pertains to child labor reads in part: "No
producer, manufacturer, or dealer shall ship or deliver for shipment in
commerce any goods produced in an establishment situated in the United States in or about which within thirty days prior to the removal of such goods there
from any oppressive child labor has been employed." 29 U.S.C. sec. 212(a).

[306]
Email from Kravitz, Wage and Hour Division, US Department of Labor, April 9,
2010.

[312]
Three of the ninety-nine children for whom such information was available. Calvert
et al, “Acute Pesticide-Related Illnesses Among Working Youths,
1988–1999,” American Journal of Public Health,
p. 609. However, working in violation of the law may discourage reporting.

[322]
EPA, “EPA to Strengthen Oversight of Pesticide’s Impact on Children
and Farmworkers,” EPA news release, December 8, 2009. The Office of
Pesticide Programs December 2009 policy paper “Revised Risk Assessment
Methods for Workers, Children of Workers in Agricultural Fields, and Pesticides
with

[324]
“Other regulations for pesticide safety and field sanitation, such as
central posting of pesticide application information in a language that workers
can understand and posting the restricted entry intervals for fields on which
pesticides have been applied, are often not enforced in farmworker
settings.” Arcury and Quandt, “Pesticide Exposure Among Farmworkers
and Their Families,” Latino Farmworkers in the Eastern United States, Arcury
and Quandt, eds., p. 107.

[326]
Human Rights Watch interview with Andrea C., age 17, Saline, Michigan, August
24, 2009. Research in North Carolina found that: “Fewer than half of
farmworkers interviewed indicated that they are told about pesticides that have
been applied where they are working, that information on pesticides that have
been applied is posted in an accessible location, or that warning signs are
posted around fields to which pesticides have been applied.” Arcury and
Quandt, “Pesticide Exposure Among Farmworkers and Their Families,” Latino
Farmworkers in the Eastern United States, Arcury and Quandt, eds., p. 113.

[331]
The seven OSHA safety and health regulations that do apply to agriculture
govern temporary labor camps, story and handling of anhydrous ammonia, logging
operations, slow-moving vehicles, hazard communication, cadmium, and the
retention of US Department of Transportation markings, placards, and labels. 29
C.F.R. sec. 1928.21(a).

[332]
As noted in the previous footnote, only those OSHA safety and health
regulations listed there apply in agriculture.

[333]
Human Rights Watch interview with Deborah Berkowitz, chief of staff; Richard E.
Fairfax, director, Enforcement Programs; and Thomas M. Galassi, deputy
director, enforcement programs, OSHA, US Department of Labor, Washington, DC,
February 17, 2010. “General duty clause” refers to section 5(a)(1)
of the Occupational Safety and Health Act, which requires employers to
“furnish to each of his employees employment and a place of employment
which are free from recognized hazards that are causing or are likely to cause
death or serious physical harm to his employees.”

[335]NIOSH estimates that fatality rates due to tractor
overturns could be reduced by a minimum of 71 percent if all tractors in the US were equipped with roll-over protective structures. John Meyers, NIOSH Division of
Safety Research, “Preventing Death and Injury in Tractor Overturns with
Roll-Over Protective Structures,” NIOSH Science Blog, January 5, 2009, http://www.cdc.gov/niosh/blog/nsb010509_rops.html
(accessed April 4, 2010). For additionalinformation,
see Davis and Leonard, “The Ones the LawForgot:Children Working in
Agriculture.”

[336]
In 1976, OSHA required all agricultural employers to equip all
employee-operated tractors manufactured after October 25, 1976, with roll-over protective
structures and safety belts, but family members are exempted and the standard
is not enforced on farms with fewer than 11 full-time employees in 47 states. Since
1986, nearly all new agricultural tractors sold in the United States have been
equipped with roll-over protective structures and seatbelts as standard
equipment, but tractors manufactured before this date remain in use, despite
the modest expense of updating the equipment compared with that of injuries and
deaths from rollovers. Meyers, NIOSH Division of Safety Research,
“Preventing Death and Injury in Tractor Overturns with Roll-Over
Protective Structures,” NIOSH Science Blog. See 29 C.F.R. sec. 1928.52.

[338]
OSHA, US Department of Labor, “Agricultural Operations: Standards,”
undated http://www.osha.gov/SLTC/agriculturaloperations/standards.html
(accessed March 17, 2010). Three states—California, Oregon, and Washington—have so-called OSHA state plans, under which a state agency administers
the OSH Act. These three states have state regulations that apply to farms with
fewer than 11 employees, but these states must use state funds to enforce this
part of their state regulations.

[341]
Office of the Press Secretary, The White House, "Remarks by the President
to the International Labor Organization Conference," June 16, 1999.

[342]
US Department of Labor, “Report for the period of September 1, 2007 to
August 30, 2009, made by the Government of the United States of America, in
accordance with Article 22 of the Constitution of the International Labor
Organization, on the measures taken to give effect to the provisions of the
Worst Forms of Child Labor Convention, 1999 (No. 182) ratification of which was
registered on December 2, 1999,” sec. III.

[348]
US Department of Labor, “Report for the period of September 1, 2007 to
August 30, 2009, made by the Government of the United States of America, in
accordance with Article 22 of the Constitution of the International Labor
Organization, on the measures taken to give effect to the provisions of the
Worst Forms of Child Labor Convention, 1999 (No. 182) ratification of which was
registered on December 2, 1999,” sec. III.

[354]
US Department of Labor, “Findings from the National Agricultural Workers
Survey (NAWS) 2001-2002,” Research Report
no. 9, March 2005, http://www.doleta.gov/agworker/report9/chapter1.cfm#ethnicity
(accessed November 20, 2009). NAWS, which is performed under contract with the
US Department of Labor, is the only national level source of information on the
employment, demographic, and health characteristics of hired crop farm workers,
but does not count working children under age 14. The information is collected
in face-to-face interviews with farmworkers in three cycles throughout the year
to reflect the seasonality of agricultural work and employment.

[357]International
Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR
Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force
March 23, 1976, art. 26 (prohibiting discrimination on “any ground such
as race, colour, sex, language, religion, political or other opinion, national
or social origin, property, birth or other status"); International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD), 660 U.N.T.S. 195, entered into
force Jan. 4, 1969 (prohibiting unlawful discrimination “based on race,
colour, descent, or national or ethnic origin”), art. 1. The US ratified the ICCPR in June 1992 and ICERD in October 1994.

[361]Committee on the
Elimination of Racial Discrimination, General Comment No. 14, para. 2. In its
concluding observations on the implementation of the ICERD in the US in 2001, the Committee stated:

While
noting the numerous laws, institutions and measures designed to eradicate
racial discrimination affecting the equal enjoyment of economic, social and
cultural rights, the Committee is concerned about persistent [racial and
ethnic] disparities in the enjoyment of, in particular, the right to adequate
housing, equal opportunities for education and employment, and access to public
and private health care.

A/56/18/380-407,
August 14, 2001, 398.

[362]See
Committee on the Elimination of Racial Discrimination, General Recommendation
XIV(42), on art. 1, para. 1 of the Convention, U.N. GAOR, 48th Sess., Supp. No.
18, at 176, U.N. Doc. A/48/18 (1993). See also, Theodor Meron, "The
Meaning and Reach of the International Convention on the Elimination of All
Forms of Racial Discrimination," American Journal of International Law,
vol. 79, 1985, pp. 287-88.

[363]
Committee on the Elimination of Racial Discrimination, “Concluding
Observation of the Committee on the Elimination of Racial Discrimination: United States of America,” CERD/C/Misc. /56/18, paras. 380-407, August 2001, para.
14. The Committee made the observations after considering the initial, second
and third periodic reports of the US, which were combined into one report.

[364]
Committee on the Elimination of Racial Discrimination, Consideration of Reports
Submitted by State Parties under Article 9 of the Convention: Concluding
Observations, United States of America, CERD/C/USA/CO/6, 2 para. 10.